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OPINION / Municipal video surveillance systems: Legal and financial challenges

By Alan F. Wohlstetter

Benefits of a municipal video surveillance system. A municipal wireless surveillance system brings a number of benefits to a community. Importantly, it serves as a force-multiplier for local police, putting more eyes on the street. With 24/7 monitoring of the surveillance cameras, the system provides real-time information to police officers and other emergency responders, with detail regarding the site and suspects that can save time and lives. An added benefit to the system is that surveillance tapes can document information critical to a police investigation, serving as a valuable tool assisting in the prosecution and conviction of criminals.

Who should own the system? While a city or town may own and operate a municipal video surveillance system, it may be worth considering setting up an independent city-related entity for this responsibility. Such a legal arrangement insulates the city or town from liability for the system, legally and financially. It also allows any procurement for the system to be outside of a cumbersome municipal procurement process ill-suited for specially-designed products. And the board of such a city-related entity can include representatives of the community, allowing for input to be received while the design and extent of the system is being discussed.

Setting up a public-private partnership. Ideally, a city-related entity would own the municipal video surveillance system, and would set forth the public policy purposes to be served by the system. It may be appropriate however, to involve the private sector in a public-private partnership, increasing the efficiency and responsiveness of the system. Selecting a private vendor to install the system puts the risks on the party best able to guard against those risks -- the private vendor. Penalties can be put in the contract with the private provider which holds it accountable to a completion schedule and performance parameters. It may be appropriate to hire a private firm to monitor the cameras themselves. An emerging legal issue is whether monitoring of surveillance cameras was previously done by police officers who are members of a union. If so, monitoring may be deemed “work” under the existing union contract, requiring it to be carried out solely by union members. If not, it may be appropriate to hire a private monitoring firm whose employees may include retired police officers for 24/7 surveillance.

Fourth Amendment concerns.  An evolving area is balancing the recording of images for public safety with the public’s reasonable expectation of privacy. Advanced technologies used in airports may be poorly suited for city streets. A key factor in surviving a legal challenge to a municipal surveillance system is to focus surveillance cameras only in public areas -- playgrounds, streets, outside schools – where an individual has a lesser expectation of privacy. There is a technology which can actually block images taken from inside homes -- images that could violate an individual’s Fourth Amendment rights. To ensure that surveillance footage is used only for police investigations and other appropriate activities, protocols must be adopted and approved by the chief of police, ensuring that the proper balance of public safety and privacy is achieved.

Financial viability of a system. The financial viability of the system is enhanced when the local school district, colleges and businesses opt to participate; by requesting specific camera locations in return for a five-year financial commitment from the institution. This commitment to the entity owning the system helps to defray the costs for the cameras and the monitors. It effectively provides an enhanced level of safety for students, employees and customers of the participating entities, creating a dedicated security effort integrated with the efforts of local police.

Watch your step! Set up properly, through a public-private partnership, a municipal video surveillance system can be tailored to a community’s needs, creating an avenue for public input and enhancement of public safety. If not handled properly, such a system can create an Orwellian society where “Big Brother is watching,” and law-abiding citizens feel as threatened as criminals.

Alan Wohlstetter is a partner with Fox Rothschild LLP and chair of the Infrastructure Practice Group. He can be contacted at:
[email protected]


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