By Jared McClain and Matthew Prensky | The Institute for Justice
For all of George Orwell’s dystopian visions, even his work didn’t imagine a future in which the government forced private citizens to purchase and operate the state’s surveillance program for them. As cities nationwide rush to blanket their streets with cameras, some are conscripting local businesses into the surveillance state.
From DeKalb County, Georgia, to Houston, Texas, local governments have started mandating that certain businesses install lights and cameras to constantly record everyone who comes by their stores. Businesses must then store the footage and turn it over to the police on demand, without a warrant. Anyone who refuses faces daily fines and jail time.
Video-surveillance requirements like the one in DeKalb County are unconstitutional. Except in limited circumstances, the Fourth Amendment requires the police to convince an impartial judge that they have probable cause to believe a search will uncover evidence of a crime before the judge issues a warrant.
Forcing businesses to film their employees and customers and then turn over video footage whenever the police want it completely ignores the Fourth Amendment. It’s not just that the ordinance cuts out the warrant requirement, but it also fails to include any other restraint on the police’s discretion to demand private footage.
In addition to violating business owners’ Fourth Amendment rights, DeKalb County’s video surveillance ordinance also infringes their property rights. The law unfairly saddles select businesses with thousands of dollars in costs to install high-definition surveillance cameras and software that can catalog timestamped video footage for at least 60 days.
County officials freely admit that the point of the law is to make private footage become “an asset to our police officers.” But the government cannot force private citizens to foot the bill for its surveillance state.
Understandably, many businesses have been slow to comply with DeKalb County’s new ordinance. Since the camera requirement took effect at the end of June, only about 20% of businesses have installed the type of high-tech surveillance and lighting that the law requires. That’s not to say that the remaining businesses don’t have surveillance cameras; they just have cameras that suit their own needs instead of the needs of law enforcement. For the county, that’s not enough.
DeKalb County Commissioner Lorraine Cochran-Johnson just announced that, come the new year, the government will refuse to renew the business licenses of any gas stations and convenience stores that still haven’t installed surveillance systems that meet the county’s specifications.
She said a business’s failure to install new cameras “is not an option. It is absolutely mandatory. If you do not have your video surveillance in place according to the guidelines, you will not receive a business license for your 2024 year.”
The county, however, cannot lawfully withhold a license because a business refused to waive its constitutional rights. The “unconstitutional conditions” doctrine restricts the government’s ability to make people give up their rights in exchange for a government benefit.
In other words, because DeKalb County’s camera ordinance is unconstitutional, the county’s decision to deny business licenses to those stores that won’t comply with the ordinance is also unconstitutional.
Hundreds of businesses in DeKalb County are now on warning. They have less than three months to either invest in the government’s new surveillance program or lose their livelihood. That is, unless someone decides to stand up to the county’s unlawful program.
Anyone who doesn’t want to shell out money to be an unwilling government agent would likely have a meritorious lawsuit against their local government. Unfortunately, it’s probably going to take a lawsuit to stop legislatures from passing these unconstitutional laws — it’s not like the cameras cost them anything.
Jared McClain is an attorney and Matthew Prensky is a writer at the Institute for Justice, a nonprofit, public interest law firm in Arlington, Va.
