New technology means giving up the opportunity to get away with it

 Scott Lauck, The Daily Record Newswire

It’s the bedrock of American law: innocent until proven guilty. Sometimes, that presumption means a crime clearly has been committed, but it’s up to the authorities to prove that the suspect did it.

In other cases, it’s clear that the suspect did something, but it must be proven that the action constitutes a crime. Or, to put it another way, a person is presumed to have acted correctly until a prosecutor can show beyond a reasonable doubt that he or she was in the wrong.

That last statement might sound like pie-in-the-sky legal theory, but for most of human history it was also a practical reality. There were only so many police and prosecutors, so catching violators of the law depended on a combination of priorities and luck. Not every infraction could be punished. Some crimes were ignored, while some weren’t even noticed at all.

Modern technology, however, is changing that equation. Cellphone signals show exactly where a suspect (or at least his phone) has been over a period of days or weeks. Street-mounted video cameras and license plate readers offer nearly irrefutable proof of where hundreds of people were at a given time. And red-light cameras make the act of rolling through a stoplight almost certain to result in a ticket.

The motto of the scofflaw — “It ain’t a crime if you don’t get caught” — is not only ungrammatical, but also increasingly impossible.

There is, of course, no right to commit a crime, and only a sociopath would believe that killing someone isn’t a crime as long as one gets away with it. But while few of us have committed murder, nearly all of us have racked up a series of minor infractions for which there were no consequences: jaywalking, speeding, incomplete stops at stop signs, overstaying one’s time at a parking spot.

All of these are violations of a law or ordinance, but in practical terms we are often free to commit them within the bounds of good judgment and — importantly — as long as the authorities don’t see it.

But what if the authorities always saw it, every time, without lifting a finger?

Red-light fight

Perhaps that sense of uneasiness underlies the current court battles in Missouri over red-light cameras. Last month, two appellate courts struck down ordinances authorizing such cameras in Kansas City and the St. Louis area, putting similar ordinances across the state on hold.

The legal victories were largely due to conflicts between city ordinances and state law, and many of the complaints in the case are about the amount of money municipalities stand to make by dishing out tickets. They certainly don’t argue for a right to run red lights.

But the suits also allege that the tickets lack due process, an argument that shades into an abuse of governmental power. In a brief, the plaintiffs highlight language on some tickets that says it “has been determined” that the recipient’s car had run a red light.

“A strong implication here is that the evidence is conclusive and the hearing has already occurred — all that remains is that the accused pay the fine as guilt has been prejudged,” the brief adds.

David Stokes of the Show-Me Institute, a free-market think tank in St. Louis, said the problem with devices such as red-light cameras is that a conviction is almost too easy.

“I think people agree it should be hard to convict people of crimes,” he said. “Not so hard that it can’t be done effectively, but it should be harder than, ‘Hey, we snapped a photo of you, here’s a picture, send us money.’ ”

Charles Territo, a spokesman for American Traffic Systems, the Arizona-based company that provides many of the red-light camera systems under attack, scoffs at that notion.

“Does a security system make it too difficult for someone to steal from you?” he said. “Does an armed guard at a bank give a financial institution too much of an advantage over a would-be bank robber?”

Territo said there’s a simple reason people get upset with red-light cameras: “They work.”

“When a police officer gives you a ticket for running a red light, it’s your word against his,” he said. “When a camera gives you a violation for running a red light, there’s a 12-second video and high-resolution images of the event. That’s very, very difficult to dispute.”

That officer’s discretion, however, can play an important role. Ryan Keane, of The Simon Law Firm in St. Louis, who has led most of the legal challenges to red-light cameras in Missouri, pointed to another piece of police technology that, if not always welcome, is not particularly controversial: the radar gun. While such a device certainly puts speeders at a disadvantage, it still requires the officer to exercise discretion and judgment when and if he stops the driver.

“There is a premium public policy related to having police officers’ pulling people over for dangerous driving,” he said. “We shouldn’t diminish that by pulling those officers off the streets to have them sit behind computers to watch footage 30 days after the fact.”

‘Tiny constable’

Missouri courts aren’t the only ones confronting new technology. Concerns about the increased power of modern surveillance technology crept into a 2012 U.S. Supreme Court case, U.S. v. Jones, in which the court threw out evidence from a GPS tracking device on a suspect’s car. The Fourth Amendment violation, however, was due only to law enforcement officials’ failure to comply with their search warrant when placing it on the car.

In a concurring opinion, Justice Samuel Alito suggested that physically placing the small device on the car was far less disturbing than what that device allowed the government to do: closely track the suspect for 28 days with little effort. When the Fourth Amendment was adopted in the late 18th century, Alito wrote, an officer would have had to hide in the back of a suspect’s coach for a month, requiring “either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.”

“In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical,” Alito added. “Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken.”

Alito couched his objections in terms of privacy, the go-to concern with much modern technology. But some of the unease with electronic surveillance seems to exist apart from that concept, as the fight over red-light cameras illustrates.

After all, it’s hard to say that red-light cameras invade anyone’s privacy: They capture images of people driving through the intersections of public streets, in full view of anyone present. As the 7th U.S. Circuit Court of Appeals declared in a 2009 opinion upholding Chicago’s red-light camera system, “[N]o one has a fundamental right to run a red light or avoid being seen by a camera on a public street.”

Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, a public interest group based in San Francisco, acknowledged that going unnoticed is less of a right than an ability, one that modern technology is eroding.

“The result is you feel like you lose a little bit of your own ability to be anonymous, to go about your business without anyone knowing what you’re up to,” he said. “Criminals love that, obviously, but I think everybody feels that to a certain extent.”

He said his organization constantly runs up against the sentiment that “the only people who worry about this are people who have wrongdoing that they want to hide.”

“Everybody has something to hide,” Fakhoury said. “Privacy is not a bad thing.”

Beating the meter

Still, it’s not hard to think of plausible surveillance technology that could raise concerns without any privacy implications at all. Consider the lowliest of offenses — a parking violation. If you fail to put any money in, or the meter runs out before you return, you get a ticket — but only if a meter reader catches you.

What if the ticket didn’t rely on human intervention? Say the parking spaces were monitored with a Wi-Fi-enabled surveillance camera that simply mailed a ticket to the owner of the car the moment the meter expired — hardly a stretch of current technology. In theory, the ticketed driver is no worse off. It’s not as if the human meter reader’s judgment plays a role: The meter was either expired, or it wasn’t. The automatic system would just be more efficient at catching parking violations than a fleet of human meter readers could ever hope to be.

But would it somehow feel different? It would be impossible to get away with parking for free. Either you pay for your time, or you get a ticket: No grey area. The citation isn’t due to the meter reader’s hard work or organization or good luck. The facts simply are what they are, and judgment is given accordingly.

Paul Litton, a law professor at the University of Missouri who studies criminal and moral responsibility theory, said people might feel that the state just doesn’t need to catch every minor violation, even if it can.

“If you’re caught every single time, is the enforcement just beyond what’s really necessary to deter people?” he said.

Plus, Litton added, “We’re used to having the opportunity to get away with it.”

“Imagine we grew up in a world where the case was that you got a ticket as soon as the meter expired, regardless of whether there was a human there to give you the ticket,” he said. “We’d probably get used to it.”

Soon enough, we might find out.