Recent events on campus have got me thinking about surveillance.
I litigate, study and teach in two worlds: post-9/11 civil liberties, and the excesses of the criminal legal system. These worlds converge in the surveillance state. The attacks of Sept. 11 stimulated an explosion in surveillance technology, which quickly made its way to conventional policing. Law enforcement all over the country now has an unprecedented ability to monitor and surveil both public and private activity.
Though this observation is hardly new, fewer people have described the driving ambition of the surveillance state. What is the goal of all this sophisticated technology? You can sum it up in four words: learn everything; disclose nothing. Surveillance works best when people do not know they are being surveilled. Law enforcement wants to capture the public’s behavior — what they write, who they meet, where they browse — precisely when people think their behavior is unmonitored. To accomplish this, surveillance grows more invasive even as it becomes less visible.
So, what does all this have to do with us? On September 23, Interim President Kotlikoff announced the administration’s response to the protesters who entered the Statler ballroom. He wrote that the demonstrators “displayed highly disruptive and menacing behavior” when they “forcibly entered the hotel by pushing aside Cornell Police Officers” and “forced their way past additional officers at the entrance to the Statler Ballroom.” A week later, the Interim President sent another note, insisting that the protest “was not a peaceful or harmless rally.” On the contrary, students “used force” to “breach” the Statler ballroom. They “physically forced their way through” two lines of police protection and “pushed police out of the way.”
These are serious allegations, and it is impossible to read them without conjuring an image of incipient violence. But how do we know if they are true? I suppose we can take Kotlikoff’s word for it, but fortunately, we don’t have to. All members of the Cornell University Police Department wear body cameras while they are on active duty. They have since early 2017. At that time, Chief Kathy Zoner and Deputy Chief Dave Honan welcomed the cameras.
As Zoner told a campus media outlet,“While body-worn cameras certainly are only a part of what goes into investigating criminal cases and public complaints, we and the community are on the same page that this equipment provides greater opportunity for objective review.” Honan said CUPD “wanted the cameras so the community could know that Cornell’s officers are doing what is expected of them. In the event there is a question about an officer’s actions, the video gives us an additional tool to investigate and alleviate the concerns of the public.”
Body cam footage is not the magic pill that many people imagine it to be. It only captures the image directly in front of an officer, which means it often misses a great deal that might be part of an officer’s reasonable decision-making. But in this case, because the demonstrators allegedly approached the police in a small, contained space and “physically forced their way through” the police lines, the footage would almost certainly allow us to see for ourselves precisely what happened. And we know Cornell officers were wearing their cameras at the Statler; Kotlikoff claimed that one protester “knock[ed] off an officer’s body-worn camera.”
So, we don’t need to take the word of the Interim President that the students were “menacing.” We can gather the evidence and make up our own mind, which strikes me as the very purpose of higher education and infinitely preferable to a world in which we are consigned to trust the carefully chosen language of those with skin in the game.
To date, the university has not released the footage, which is not a good sign.
Meanwhile, Vice President of Student Life Ryan Lombardi recently described “how Cornell is preparing for another semester of campus tumult.” It seems the University is increasing its capacity to surveil the campus community by installing cameras in new and renovated buildings. That much has already been reported by The Sun. But we should read this fact alongside another: Cornell is currently revising University Policy 8.1, which regulates how the university will conduct video surveillance on campus.
The current version of 8.1 remains in effect while it is being revised. It states in part that Cornell “aims to provide a secure environment for members of its community and to protect personal safety and property, assisted by video surveillance systems technology. Such technologies, however, must be used only to meet the University’s critical goals for security, and in a manner that is sensitive to interests of privacy, free assembly and expression.” This all sounds nice, but the fact is, it’s being revised, and we have no idea what the new policy might provide.
I am not by nature alarmist. I wasn’t at the Statler and don’t know what the police body cam footage might reveal. Perhaps it fully supports what the Interim President has written. It is also possible that the new policy on video surveillance will be, both in theory and practice, “sensitive to [the] interests of privacy, free assembly, and expression.” But at least right now, we have no idea whether either of these things are true. We know that footage exists but that it has not been disclosed; we know that the University policy on surveillance is being amended, but we know nothing about what the final product might be or the process which produces it. Both these omissions are intolerable.
For those who till these fields, it’s all starting to look familiar: Learn everything; disclose nothing.
Joseph Margulies is a Professor of Law and Government. Margulies can be reached at [email protected].
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