[Congressional Record: April 15, 2010 (Senate)]
[Page S2379-S2381]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mr. Feingold, and Mr. Kaufman):
S. 3214. A bill to prohibit any person from engaging in certain video
surveillance except under the same conditions authorized under chapter
119 of title 18, United States Code, or as authorized by the Foreign
Intelligence Surveillance Act of 1978; to the Committee on the
Judiciary.
Mr. SPECTER. Mr. President, I have sought recognition to introduce
the Surreptitious Video Surveillance Act of 2010, on behalf of Senator
Feingold, Senator Kaufman, and myself.
This is a bill which I submit is necessary to protect our citizens
from unwarranted intrusions in their homes. The bill regulates the use
of surreptitious video surveillance in private residences where there
is a reasonable expectation of privacy.
Earlier this year, in Lower Merion Township, a suburb of
Philadelphia, it was discovered that laptops taken home by students
could be activated by school officials and thereby see what was going
on inside a private residence.
Surprisingly, this kind of surreptitious surveillance is not
prohibited under Federal law. The wiretap laws specify it is a
violation of law to intercept a telephone conversation or to have a
microphone that overhears a private conversation, but if it is visual,
there is no prohibition.
This issue has been in the public domain since 1984--more than 25
years ago--when Judge Richard Posner, in the case captioned U.S. v.
Torres, said this:
Electronic interception, being by nature a continuing
rather than one-shot invasion, is even less discriminating
than a physical search, because it picks up private
conversations (most of which will usually have nothing to do
with any illegal activity) over a long period of time. . . .
[E]lectronic interception is thought to pose a greater
potential threat to personal privacy than physical searches.
. . . Television surveillance is identical in its
indiscriminate character to wiretapping and bugging.
Judge Posner identified the problem a long time ago. Yet it lay
dormant until this incident in Lower Merion Township brought it into
the public fore.
On March 29, in my capacity as chairman of the Judiciary Subcommittee
on Crime and Drugs, we conducted a hearing in Philadelphia. We had an
array of experts very forcefully identify the problem and the need for
corrective action.
The New York Times editorialized, on April 2, 2010, in favor of this
legislation.
I urge my colleagues to take a look at the bill. I think there is
likely to be widespread acceptance that in an era of warrantless
wiretaps, when privacy is so much at risk, we ought to fill the gap in
the law to cover this kind of electronic surveillance.
Mr. President, I ask unanimous consent that a copy of the New York
Times editorial dated April 2, 2010, the text of my full statement and
the text of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Apr. 2, 2010]
Editorial: About That Webcam
A Pennsylvania town has been roiled by a local high school
using cameras in school-issued laptops to spy on students.
Almost as shocking is the fact that the federal wiretap law
that should prohibit this kind of surveillance does not cover
spying done through photography and video in private
settings.
Senator Arlen Specter, a Democrat of Pennsylvania, is
proposing to amend the federal wiretap statute to prohibit
visual spying that is not approved by a court in advance.
Congress should move quickly to make this change.
Lower Merion, outside of Philadelphia, gave students at
Harriton High School laptops that they could take home to use
to do their work. It did not tell the students, however, that
the laptops were equipped with special software that allowed
them to observe the students through the computers' built-in
cameras. The purpose, the school district later explained,
was to protect the laptops from theft or damage.
Using this surveillance capability, school officials found
images that led them to believe that Blake Robbins, a 15-
year-old student, was using illegal drugs. Mr. Robbins said
the ``pills'' he was seen consuming were Mike and Ike
candies. His parents filed a lawsuit against the school
district, charging that it had illegally spied on their son.
Conducting video surveillance of students in their homes is
an enormous invasion of their privacy. If the district was
really worried about losing the laptops, it could have used
GPS devices to track their whereabouts or other less-
intrusive methods. Whatever it did, the school had a
responsibility to inform students that if they accepted the
laptops, they would also accept monitoring.
The law should also do more. The Wiretap Act prohibits
electronic eavesdropping on conversations and intercepting
transmitted communications, such as e-mail. It does not cover
visual surveillance. That was a mistake when parts of the law
were passed in 1986, but it is an even bigger problem today,
with the ubiquity of cellphone cameras, and online video
services.
The act should be amended to prohibit video and
photographic surveillance of people without their consent in
their homes, hotels, and any other place in which they have a
legitimate expectation of privacy.
____
Floor Statement of Senator Arlen Specter in Support of the
Surreptitious Video Surveillance Act of 2010
Mr. President, I have sought recognition to introduce the
Surreptitious Video Surveillance Act of 2010, a bill needed
to protect our citizens from unwarranted intrusions in their
homes. This bill regulates the use of surreptitious video
surveillance in private
[[Page S2380]]
residences where there is a reasonable expectation of
privacy.
In February of this year, national and international news
stories covered an alleged incident in the Lower Merion
School District in Montgomery County, PA. According to a
lawsuit filed in Federal court, the Harriton High School
administrators in Lower Merion allegedly engaged in
surreptitious video surveillance of a student in his bedroom
by using a remotely activated webcam on a school laptop. If
these allegations are true, the school engaged in a
significant invasion of an individual's fundamental right of
privacy. Michael and Holly Robbins, parents of the high
school student, allege that the school used a webcam, which
was part of a theft tracking software program installed in
each school-issued laptop, to remotely take photographs of
their son in their home. The parents allege that the school
district's actions amounted to ``spying'' and conducting
unlawful ``surveillance,'' and they claim that they were not
given prior notice that the school could remotely activate
the embedded webcam at any time.
This is something that could happen almost anywhere and at
any time in our country. Many corporations, government
agencies and schools loan laptops to employees and students.
And many of these laptops have webcams with the ability to
take video or still shots that can be operated remotely.
The alleged webcam spying case raises important and
fundamental issues concerning the rights of individuals to
privacy in their homes for themselves and for their children,
and shows how those rights can conflict with important rights
that owners of property have to conduct surveillance to
protect their property and to maintain safety.
On Monday, March 29, 2010, I chaired a Subcommittee on
Crime and Drugs field hearing in Philadelphia, Pennsylvania.
At that hearing, we heard from a host of experts that Title
III of the Omnibus Crime Control and Safe Streets Act, known
as the Federal Wiretap Act, does not forbid video
surveillance. Title III creates criminal and civil liability
for secretly recording conversations in a room or on the
telephone, as well as interceptions of email communications,
without a court order. But since the Wiretap Act was passed
in 1968, it has never covered silent visual images. This
conclusion is supported by a large body of case law and is
also bolstered by Congress' clear legislative history. After
studying the matter, I announced that I would introduce
legislation to close this gap in coverage. On April 2, 2010,
the New York Times editorial page noted I would introduce
legislation ``to amend the federal wiretap statute to
prohibit visual spying that is not approved by a court in
advance'' and went on to say, ``Congress should move quickly
to make this change.''
Technology is changing fast--faster than our federal laws
can keep up. More than 25 years ago, Judge Richard Posner in
United States v. Torres, 751 F.2d 875, 884-885 (7th Cir.
1984), saw the need for Congress to address video
surveillance when he wrote:
Electronic interception, being by nature a continuing
rather than one-shot invasion, is even less discriminating
than a physical search, because it picks up private
conversations (most of which will usually have nothing to do
with any illegal activity) over a long period of time . . .
[E]lectronic interception is thought to pose a greater
potential threat to personal privacy than physical searches .
. . Television surveillance is identical in its
indiscriminate character to wiretapping and bugging (emphasis
in original).
Holding that Title III did not apply to secret television
cameras placed by the government in a safe house to observe
members of the FALN terrorist organization build bombs, Judge
Posner specifically invited Congress to respond ``to the
issues discussed in this opinion by amending Title III to
bring television surveillance within its scope.''
The bill I am introducing today, the Surreptitious Video
Surveillance Act of 2010, makes that long overdue correction
to the law. The bill strikes the necessary and correct
balance of protecting important privacy rights without
proscribing the visual surveillance needed to protect our
property and safety. It does this simply by amending the
Federal Wiretap Act to treat video surveillance the same as
an interception of an electronic communication. Video
surveillance is defined in the bill to mean the intentional
recording of visual images of an individual in an area of a
residence that is not readily observable from a public
location and in which the individual has a reasonable
expectation of privacy.
The bill does not regulate video surveillance where another
resident or individual present in the residence consents to
the surveillance. Thus, the bill does not regulate cameras in
the workplace, does not prohibit the use of cameras in
undercover operations using confidential informants, and does
not include residential security systems that use video
cameras.
Many of us expect to be subject to certain kinds of video
surveillance when we leave our homes and go out each day--at
the ATM machine, at traffic lights, or in stores for example.
We expect this and we do not mind because we understand that
such surveillance helps to protect us and our property. What
we do not expect, however, is to be under visual surveillance
in our homes, in our bedrooms, and most especially, we do not
expect it for our children in our homes. Today cameras in
computers and in cell phones are ubiquitous, making it more
urgent that the Federal Wiretap Act be amended to prohibit
video surveillance of people without their consent in their
homes. I urge the Senate to make this long overdue correction
to the law and pass this bill quickly to protect important
privacy rights of all Americans.
____
S. 3214
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Surreptitious Video
Surveillance Act of 2010''.
SEC. 2. PROHIBITION ON USE OF VIDEO SURVEILLANCE.
(a) In General.--Chapter 119 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2523. Prohibition on use of video surveillance
``(a) Definition.--In this section, the term `video
surveillance' means the intentional acquisition, capture, or
recording of a visual image or images of any individual if--
``(1) the individual is in an area of a temporary or
permanent residence that is not readily observable from a
public location;
``(2) the individual has a reasonable expectation of
privacy in the area; and
``(3) the visual image or images--
``(A) are made without the consent of--
``(i) an individual present in the area; or
``(ii) a resident of the temporary or permanent residence;
and
``(B) are--
``(i) produced using a device, apparatus, or other item
that was mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means; or
``(ii) transported or transmitted, in or affecting, or
using any means or facility of, interstate or foreign
commerce, including by computer.
``(b) Prohibition on Video Surveillance.--It shall be
unlawful for any person to engage in any video surveillance,
except--
``(1) as provided in this section; or
``(2) as authorized under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
``(c) Treatment as Electronic Surveillance.--
``(1) In general.--Subject to paragraph (2)--
``(A) video surveillance shall be considered to be an
interception of an electronic communication for the purposes
of this chapter; and
``(B) it shall not be unlawful for a person to engage in
video surveillance if the video surveillance is conducted in
a manner or is of a type authorized under this chapter for
the interception of an electronic communication.
``(2) Exception.--Sections 2511(2)(c), 2511(2)(d), 2512,
2513, and 2518(10)(c) shall not apply to video surveillance.
``(3) Prohibition of use as evidence of video
surveillance.--
``(A) In general.--No part of the contents of video
surveillance and no evidence derived from video surveillance
may be received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
officer, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof if the disclosure of the video
surveillance would be in violation of this chapter.
``(B) Motion to suppress.--
``(i) In general.--Any aggrieved person in any trial,
hearing, or proceeding described in subparagraph (A) may move
to suppress the contents of any video surveillance conducted
under this chapter, or any evidence derived from the video
surveillance, on the grounds that--
``(I) the video surveillance was unlawfully conducted;
``(II) the order of authorization or approval under which
the video surveillance was conducted was insufficient on its
face; or
``(III) the video surveillance was not conducted in
conformity with the order of authorization or approval.
``(ii) Timing of motion.--A motion made under clause (i)
shall be made before the trial, hearing, or proceeding
unless--
``(I) there was no opportunity to make such motion; or
``(II) the aggrieved person described in clause (i) was not
aware of the grounds of the motion.
``(iii) Remedy.--If the motion made under clause (i) is
granted, the contents of the video surveillance, or evidence
derived from the video surveillance, shall be treated as
having been obtained in violation of this chapter.
``(iv) Inspection of evidence.--The judge, upon filing of a
motion under clause (i), may, in the discretion of the judge,
make available to the aggrieved person or counsel for the
aggrieved person for inspection such portions of the video
surveillance or evidence derived from the video surveillance
as the judge determines to be in the interests of justice.
``(v) Right to appeal.--
``(I) In general.--In addition to any other right to
appeal, the United States shall have the right to appeal from
an order granting a motion made under clause (i), or the
denial of an application for an order of approval, if the
United States attorney certifies to the judge or other
official granting the motion or denying the application that
the appeal is not taken for purposes of delay.
[[Page S2381]]
``(II) Filing deadline.--An appeal under subclause (I)
shall--
``(aa) be taken within 30 days after the date the order was
entered; and
``(bb) be diligently prosecuted.''.
(b) Chapter Analysis.--The table of sections for chapter
119 of title 18, United States Code, is amended by adding at
the end the following:
``2523. Prohibition on use of video surveillance.''.
______
