Senate Hearing Weighs Closing Video Surveillance Loophole

By Matthew Harwood

A Senate field hearing in Philadelphia today examined whether a decades-old wiretapping statute needs revision in light of new and powerful video surveillance technologies empowered by the Internet. The hearing stems from a pending case in Pennsylvania where school administrators allegedly spied on a student in his bedroom using the webcam embedded in his school-issued laptop.

Witnesses argued whether the Wiretap Act of 1986 needs to be amended to protect the public from the rise of secret video surveillance. The law, which amended Title III of the Omnibus Crime and Control Act of 1968, regulates the interception of any oral, wire, or electronic communication by a third party without consent. Violators of the statute face both felony and civil damages. Nevertheless, a loophole exists, which needs plugging, said Kevin S. Bankston, senior staff attorney for the Electronic Frontier Foundation.

"The secret use of a webcam or a radio-controlled camera to photograph you inside your home is not currently regulated or prohibited by Title III, because in such a case there would be no oral, wire, or electronic communication of yours to be intercepted," he explained to a Senate Judiciary subcommittee. "The only communication would be the electronic communications between the camera and the person who is remotely operating it, and that person is a party to those communications as opposed to a third party intercepting your communications with someone else."

Marc J. Zwillinger, a law partner at Zwillinger Genetski LLP, cautioned lawmakers to not write overly broad legislation in reaction to the loophole.

"When addressing video surveillance," he said, "we need to carefully craft specific legislation to target the specific harms we want to prevent without eliminating the ability of government and private citizens to conduct legitimate video surveillance for safety and security purposes."

Zwillinger argued if Congress merely amended the Wiretap Act to encompass video surveillance without considering whether a "reasonable expectation of privacy existed," it would make use of surveillance cameras in various applications illegal. Rather Zwillinger recommended that Congress look at various state statutes in Delaware and Georgia that allow video surveillance for safety and security purposes but prohibit it when it intrudes into private spaces.

Professor Fred H. Cate of the Indiana University Maurer School of Law split the difference, agreeing with Bankston that amending the Wiretap Act was necessary while acknowledging legitimate uses for the powerful technology.

"It will be critical not to make the amendment so broad that it covers security cameras in public places," he said.

The reason behind the hearing occurred not far away from where it was held.

Last month, the parents of 15-year-old Harriton High School student Blake Robbins filed a class-action lawsuit accusing school administrators of violating Robbins' constitutional rights, Pennsylvania state law, and several federal statutes including the Wiretap Act. The high school student became aware of the covert surveillance when a school administrator told him in November that she had the "smoking gun" against him—webcam images of him popping drugs. The teenager says administrators caught him eating "Mike & Ike," his favorite candy.

(For more background on the case, see "Webcamgate:Student Accuses Suburban Philly High School of Using Webcam to Spy on Him.")

The Lower Merion School District has since disabled the security feature that allowed administrators to tap into a student's webcam. The company whose software was used by school administrators to surveil Robbins has also followed suit.

"Through a software patch offered to the Theft Track customers we acquired, [we have] disabled the webcam feature earlier this year," testified John Livingston, CEO of Absolute Software. The software used to activate the webcam came from a company that Absolute Software bought last year.

This article was written from publicly available statements submitted for the record.

♦ Photo of a MacBook Air's built-in camera by Marcin Wichary/Flickr


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