Can a City Require Surveillance Cameras in Cybercafes Without Violating the First Amendment?
A California Court Rules on the Issue

By ANITA RAMASASTRY

Thursday, Feb. 19, 2004

In late January of this year, in the case of Vo v. City of Garden Grove, a California Court of Appeals for the Fourth District upheld a municipal ordinance that affected the city's cybercafes.

Specifically, the ordinance imposed a curfew banning minors from cybercafes during school hours, and required uniformed security guards at cafes on Friday and Saturday nights. The ordinance also mandated that cybercafes install video surveillance systems, and keep the tapes for at least 72 hours. (It did not purport to allow the police or other officials to view the tapes in the absence of a search warrant. But nor did it prevent cybercafe owners from voluntarily turning the tapes over to the police.) Finally, the ordinance required would-be cybercafe owners to seek "conditional use" zoning permits from the city.

According to the city, the purpose of the ordinance was to curb gang-related violence. According to the plaintiffs, however, the ordinance violated the First Amendment. Plaintiff Diane Vo, who owns the Vietnam Internet Center, said the restrictions not only impeded speech, but also make it financially impossible to run a successful cybercafe.

The majority of the court ruled in favor of the City (except in that it struck down the permit requirement). But in a passionate dissent, Justice David Sills accused his colleagues of sanctioning Orwellian "Big Brother" governmental oversight, and remarked that their opinion "represents a sad day in the history of civil liberties."

Sills complained that the majority was wrong to "see no infringement on privacy when a video camera is, literally, looking over your shoulder while you are surfing the Internet." "This is the way constitutional rights are lost," he continued. "Not in the thunder of a tyrant's edict, but in the soft judicial whispers of deference."

Sills's dissent is persuasive and may ultimately prove correct. Government-mandated video surveillance of cyber cafes should be seen as a serious First Amendment issue, one deserving of much stronger legal scrutiny than it received by the majority.

The History Leading to the Cybercafe Ordinance

In a December 31, 2001 memorandum, Joseph M. Polisar, Garden Grove's chief of police, advised the city manager of the rapid growth in the number of cybercafes operating in the city -- which had shot up from just 3, to 22.

Polisar also detailed seven incidents of criminal activity occurring in or near four different cybercafes, during the last three months of 2001. Five of the seven involved gang activity. The most recent incident, occurring in late December 2001, was the murder of a 20-year-old male while he was standing in front of a cybercafe.

The city council quickly enacted an emergency interim ordinance. Then, on August 8, 2002, a permanent ordinance went into effect.

After the plaintiffs sued, Superior Court Judge Dennis S. Choate granted their motion for a preliminary injunction, barring the city from enforcing the ordinance. But the city, as noted above, appealed and won.

The Appellate Court: Differing Over the Nature of Cybercafes

On appeal, both majority and dissent agreed that cybercafes are entitled to First Amendment protection -- just as bookstores, video arcades, and movie theaters are. But the majority did not see cybercafes as anything more than business establishments, where cameras are often permitted.

Justice Sills, however, argued persuasively in dissent that cybercafes are not just retail establishments. They are also forums for speech and discussion, and broad reading and browsing.

In his view, cybercafes are a sort of mix between a public library (which typically protect borrowers' anonymity), a private home library, a discussion group, and a very effective low-cost desktop publisher. As with a library, Sills opined, there is "an expectation of privacy even as to one's identity when using a cybercafe."

Cybercafes, he explained, "allow people who cannot afford computers (or the high speed connections)" to both read others' postings, and to take advantage of "the freedom of the press," by "post[ing] messages to the whole world." They are thus "the poor man's printing press and private library."

The majority, however, made short shrift of Justice Sills's important "digital divide" point. "Our analysis is independent of the [dissent's] assumption about the customer's wealth," it stated.

It should have paid more attention to this point, though, for the upshot of the opinion is that those in Garden Grove who can buy computers, can use the Internet in privacy, and those who cannot afford to, must submit to surveillance.

Does An Interest In Safety Justify Surveillance of Cybercafes?

Despite recognizing that the First Amendment was implicated, the majority nevertheless upheld the ordinance (with the exception of the permit requirement, which the court held gave too much discretion to city officials to act, in effect, as censors.)

The city "has a substantial interest in public safety, and in the safety and well being of minors specifically," its opinion explained. It saw the video cameras as an acceptable way to achieve that interest -- no more objectionable than the similar cameras we have grown used to at ATMs, retail stores, and intersections, or than the presence of a shorter-memoried security guard.

But Justice Sills argued persuasively that this safety interest did not justify video surveillance. He contended that the court should have applied "heightened" scrutiny of the ordinance -- requiring that the ordinance must be narrowly tailored to achieve a compelling government interest.

Justice Sills then argued that under this standard, the ordinance failed: Security was an important interest, but video surveillance was not necessary to achieve it. Instead, police patrols could be increased; owners could be supplied with a list of gang-members who could be refused service; and security guards could be posted at those cybercafes (4 of a total of 22) which have actually experienced gang-related violence.

Unlike the majority, Justice Sills saw a dramatic difference between video cameras with the ability to record, and short-memoried security guards. He commented: "A security guard is usually some guy standing around looking bored. A video camera is a permanent record of events, accessible to the police with a proper search warrant."

International Cybercafe Surveillance: Is This Malaysia or California?

Perhaps the most rhetorically effective part of Sills's dissent was its reference to the use of cybercafe surveillance and other, similar measures by totalitarian governments.

In particularly, Sills cited an effort by Malaysia to register the names and identity card numbers of all Internet cafes -- and pointed out that even Malaysia had "backed down." Sills complained, "Apparently my colleagues are willing to countenance infringements on the rights of cybercafe users which even the government of Malaysia is too ashamed to enforce!" He also cited China's (and Vietnam's) attempts to restrict and censor public Internet access.

Sills also pointed out, more generally, that totalitarian governments tend to harshly restrict the public's access to communication tools: They have always "cracked down on unrestricted access to the means of communication. When the Communists were in control of countries such as Albania and Bulgaria, each typewriter was licensed. Today typewriters are still licensed in Communist Cuba."

Video Surveillance of Cybercafes: A Trend That Should be Stopped

Sills's point is a telling one: Garden Grove's cybercafe regulations are similar to those enforced by countries that, unlike America, do not honor freedom of the press and freedom of speech. His dissent thus implies a crucial question: Are we willing to become more like such societies?

Interestingly, the majority opinion suggest that several other municipalities in California are also regulating cybercafes. If so, that is a very worrying trend.

Video cameras in cybercafes are just as offensive as video cameras in public libraries would be. And for those who cannot afford home computer access, and must use cybercafes instead, video cameras in cybercafes are arguably even as offensive as video cameras in the libraries of private homes.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.

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