IN FACT, ITíS UNCLEAR whether the longstanding WPD practice is even legal. Worcester police may believe that itís well within the law to take pictures of people who are congregating in public places ó and, in many ways, theyíre correct. Video surveillance has grown increasingly ubiquitous these days. Cameras capture our images at airports, banks, stores, and on city streets. But Boston civil-liberties attorney and frequent Phoenix contributor Harvey Silverglate, who serves on the Massachusetts ACLU board, explains that just because people are out and about in public doesnít necessarily mean they must forfeit their privacy rights. "The issue," he says, "is whether thereís a constitutional reason to limit the police from taking pictures of citizens."
If the WPD were photographing residents in general by, say, stationing a camera outside City Hall and filming every person who happened to enter the building, Silverglate says, "Itís hard to argue a reasonable expectation of privacy in that case." But that hasnít been the WPDís surveillance strategy. Instead, itís pinpointed those residents who are engaged in only certain lawful activities. "Thatís different," Silverglate adds, "and arguably unconstitutional. Because itís targeted, I think the Worcester police have crossed the line."
Mark Rotenberg, a constitutional-law expert who heads the Electronic Privacy Information Center (EPIC), in Washington, DC, concurs: "The Worcester police have careened off the rails on this one." For one thing, he points out, precedent already exists for defining the practice as illegal. After the FBIís cointelpro program came to light in the 1970s, the US Congress passed the Federal Privacy Act of 1974, which prohibits federal law-enforcement agencies from collecting information, including photographs, about peaceful protesters. Although Massachusetts doesnít have a statute governing state and local police, he adds, "Many states prevent this behavior." In other words, legislators here would not be breaking new ground were they to follow suit.
Moreover, the Supreme Court has established a foundation for arguing against the tactic. In 1970, the ACLU filed Tatum v. Laird, which challenged the US Department of Defenseís use of photo surveillance at antiwar protests. The ACLU contended the practice was unconstitutional because it was used to intimidate and thus silence dissent. In a 5-4 vote, the Court ruled against the ACLU ó but not because it deemed the method constitutional. Rather, the Court found that, as Madnick of the Worcester ACLU puts it, "You have to show that this surveillance has caused harm or real damages." Youíd have to show, for instance, that a protestor had lost his job because of a photograph. The ACLU did not make that case at trial. And so, Madnick concludes, "The Court is really saying if you find someone who has suffered harm, bring the case back. The question of whether the tactic is constitutional remains unresolved."
At the same time, the Court has made it clear that the First Amendment protects anonymous speech. In the 1996 case of McIntyre v. Ohio, it overturned an Ohio statute that forced people who distribute political leaflets to identify themselves by name on the materials. Three years later, in 1999, it threw out a similar law in Colorado requiring petitioners to wear name tags while gathering signatures for candidates and ballot initiatives. "The Court has said we have a right to engage in political action without being compelled to disclose our identities," notes Rotenberg, "which is what the [Worcester] police are doing when they take pictures of protesters."
While the legality of the WPD practice is debatable, its benefits to police seem too minimal to argue about. To say that pictures showing peaceful protesters in 2002 will help police if and when the same protesters lash out in 2004 doesnít add up. Lawful activity today has no bearing on a crime that happens tomorrow. As Silverglate puts it, "That rationale is a dishonest excuse for cops who want to play Big Brother."
Meanwhile, the consequences of photo surveillance can be severe. If police start to photograph political, social, and labor protests routinely, citizens may become reluctant to participate and speak out. After all, not everyone wants his or her face forever recorded by law enforcement, especially when we have no idea where it will end up. Offers Rotenberg, "People in Worcester rightly understand that this information has been misused in the past, and it can chill free speech."
Worcester advocates are right to demand a policy that regulates photo surveillance, civil libertarians add. Written guidelines ó which detail when the WPD can take pictures of demonstrations, and how it should maintain those images ó would benefit not only residents, but also police officers. Law enforcement depends on community support. Yet a practice that effectively targets those whom police are supposed to protect doesnít sit well with the public. Enforceable regulations, at the very least, would guarantee accountability. Even Cipro, of the local police union, acknowledges that protocols would help officers in the field. If photographing protests becomes common practice, he says, "We should have something in writing."
Itís hard to predict whether that will be the outcome in Worcester. Chief Gallagher has been candid about his belief that the WPD does not need a policy. Next month, he intends to submit a report outlining his recommendations on the issue to the public-safety committee. "I will address peopleís concerns in my report," he explains, declining to get specific. Asked whether he can do so without proposing a policy, he replies, "I donít know. Iíll be responding. Whether I satisfy residents may be another thing entirely."
That might not be good enough for some city councilors. That the WPD could, on a whim, take pictures of any group demonstrating on the cityís streets troubles Worcester mayor (and head of the city council) Tim Murray, for one. As a civil attorney, Murray cannot forget his days in law school, when he was taught the value of probable cause. To get a search warrant, police must spell out reasons for suspicion. Similarly, he thinks officers should be required to articulate reasons for scrutinizing protesters. Explains Murray, "The practice should not come down to a vague, subjective standard that no one seems to be able to define."
But other councilors seem more conflicted about the issue. At-large councilor Michael Perotto, who heads the public-safety committee, understands Gallagherís position. Big crowds can lead to disturbances. If something happened at a protest and officers couldnít identify the culprits, he says, the WPD could be accused of incompetence. So Perotto doesnít want to, in his words, "handicap the police." Still, heís bothered that officers would snap photos of "just anybody and everybody who decides to protest."
At-large councilor Joseph Petty, who also serves on the councilís public-safety committee, agrees: "Iím still debating the issue." Although he doesnít want to dictate to the police, he says, he remains uncomfortable about the whole thing: "It seems like Big Brother, like government watching people."
For now, then, advocates must wait until the chief releases his report in April. Even then, many of them anticipate a tough road. Police departments, after all, are powerful institutions. And implementing a policy that goes against what the cityís top cop wants would take political courage ó especially in light of todayís intolerant, law-and-order climate. When trying to gauge councilors, advocates look to one moment during the March 14 hearing, when the three-person public-safety committee questioned Gallagher about the WPD practice. In many ways, councilors failed to put the chief on the hot seat. No one uttered an objection when Gallagher insisted that he did not recall the last time police photographed protesters, despite press accounts to the contrary. The kid-glove treatment suggests that the city council wonít challenge the WPD on this issue for fear of appearing anti-police.
Then again, it might. After all, as Ksen himself observes, "if the judicial system is still wrestling over whether this practice is constitutional, Worcester city councilors cannot just resolve the debate." And if councilors need another reminder of the harm the WPD practice can cause, they need look no further than the seemingly benign photograph of a young blond woman ó who happened to tote a camera and a gun.
Kristen Lombardi can be reached at klombardi[a]phx.com