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Abstract

In 2010, New York City Police Commissioner Raymond Kelly announced a new network of video surveillance in the City. The new network would be able to prevent future terrorist attacks by identifying suspicious behavior before catastrophic events could take place. Kelly told reporters, "If we're looking for a person in a red jacket, we can call up all the red jackets filmed in the last 30 days," and "[w]e're beginning to use software that can identify suspicious objects or behaviors." Gothamist later made a witticism of Kelly's statement, remarking, "Note to terrorists: red jackets are not a good look for you." This small joke captured a real concern for New Yorkers: what if you're not a terrorist, but you do happen to wear a red jacket in the subway on a day when the New York City Police Department is looking for red-jacketed terrorists? And what if you happen to have brown skin? Or pray at a mosque? Should these attributes be captured on video, are they sufficient for the NYPD to bring you in for questioning, or even to arrest you? Surveillance cameras have been present in New York City for decades, installed and monitored by both the NYPD and private business owners. After September 11th and the PATRIOT Act, their numbers surged. The number of cameras that capture the images of New Yorkers each day remains dwarfed by those in London, where there is one camera for every fourteen residents, under the much-celebrated and equally controversial "ring of steel." However, the numbers in New York are in the thousands, particularly since the launch of the system announced by Commissioner Kelly in 2010: the Lower Manhattan Security Initiative and the Midtown Manhattan Security Initiative (LMSI and MMSI, respectively). The NYPD touts the LMSI and MMSI as unique: they form a completely networked system, such that all video camera feeds can be monitored from a single location, in real time. This type of program is anticipated to be more effective in stopping crime and terror attacks than London's static system, which provides only playback capabilities and not real-time monitoring. Despite their reach, however, neither the New York nor the London program has yet been proven effective in preventing either crime or terrorist attacks. Any surveillance program clearly raises privacy concerns for the monitored population. This Note weighs some of those concerns for New Yorkers, not against national security interests, the validity of which this Note largely concedes, but rather against the lack of legal accountability built into the LMSI and MMSI. That is, this Note asks whether the possible encroachments on privacy and the risks of abuse can be justified by a system that was implemented with no legally binding process for accountability to the public, thus bearing the risk of serious privacy violations and abuses. This Note takes the position that, while a surveillance program like New York City's may be justified and needed in the modern world, it cannot be allowed to operate outside of any legally enforceable systems of accountability. Part I of this Note will offer an overview of video surveillance programs and the conflicting information regarding their efficacy in preventing and solving crime. Part II examines the present state of the City and the law regarding video surveillance in New York City. It also contrasts the NYPD's privacy guidelines for the LMSI and MMSI with the laws governing video surveillance in the United Kingdom, where video surveillance was adopted early and has been used extensively, in London and in other cities and villages. Part III seeks to understand why Chris Dunn, Associate Legal Director of the New York Civil Liberties Union (NYCLU), is convinced that there is no legal argument that could directly challenge the presence of surveillance cameras in New York City. It will identify the types of problems that may stem from New York City's current system, demonstrating very real concerns about privacy invasion and other possible abuses. Part IV will make projections as to where law and practice is heading on this issue, and will posit recommendations and hopes for future practice.