“all entrances and exit points and all interior spaces, excepting bathroom and private office areas,” so that they can “delineat[e] on playback . . . the activity and physical features of persons or areas within the premises”: That’s what a Garden Grove, California city ordinance requires — because apparently three of the 22 cybercafes in the city have had serious gang problems, and two others have had some other crime problems — and the California Court of Appeal has just upheld this. The two-judge majority and the one-judge dissent are here; they’re actually pretty easy to read. There’s also a short article about the case here.
I think this is not a doctrinally easy case. But though I think some of the dissent’s rhetoric is a bit overheated, and the law is far from clear here, I share some of the dissent’s misgivings. Legally mandated videotaping of places where people congregate to read and write is not something to be done lightly, or accepted lightly. Even if such a requirement is constitutional, it’s troubling that Garden Grove has imposed such a requirement specifically on speech-related activities, and imposed it on all cybercafes, including the great majority that have no crime problem. (I realize that if the law targeted only those cybercafes that have had some gang activity, this might just push gangs to those cybercafes, since apparently Garden Grove gangs seem to prefer cybercafes. But I suspect that the level of likely gang activity is also related to the cafe’s location and to other factors, so there may well be many cybercafes that will be required to videotape even though there would never be any substantial gang activity there.)
People worried about slippery slopes, by the way, might be interested in this sentence from the majority:
With the near ubiquitous use of video surveillance in retail establishments, at automated bank teller machines, and at road intersections, it is difficult to imagine, certainly at the preliminary injunction stage, that the customer’s expectation of privacy is reasonable under the circumstances.
I’m not sure that there was ever a reasonable expectation of privacy related to one’s presence in a public place; but the court’s argument suggests that even if such a privacy might have once existed, the increase in the number of videocameras in public places has over time eliminated it. Aha, an anti-surveillance advocate would say: That’s why you need to stop public surveillance at the very beginning, before one form of surveillance is used to justify another, and ultimately any right to be free from public surveillance is lost.
Incidentally, this is the second WESTLAW-accessible court opinion that uses the term “blogger” (the first is Batzel v. Smith from the Ninth Circuit, handed down two months ago), and the first that uses the word “blogging.” No specific blogs cited, I’m afraid. Other interesting items in the opinions: The sentences “Wow!” in the majority, and “Sigh” and “Guess what?” in the dissent.
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