There is a wide range of state laws governing the recording of private conversations, but virtually all of them prohibit anyone who is not a party to a conversation to record it, and require at least one participant to consent to the recording.
Tien said transit officials may argue that posting notice that audio surveillance is in use means that anyone who rides those vehicles has consented. “But I don’t think that’s honestly consent,” he said.
There are also political and demographic issues at play. Privacy advocates say conversations involving nothing more threatening than strong opinions on politics, or politicians, could be monitored.
“It’s not just about privacy, it’s about freedom of speech,” Herold said, “Declaring open season on conversations just because they take place in public or communal space will have a chilling effect.”
And Tien noted that the surveillance could disproportionately affect low-income groups, “because of the demographics of public transit ridership, especially on city buses.”
Finally, according to government documents, it also raises security questions. Herold cited a recently released (and redacted) 2007 audit from the Office of the Inspector General (OIG). She said it found that, “surveillance data is not properly safeguarded, and is misused.
“Eavesdropping on all people’s conversations crosses the line; this is not focused on a specific investigation,” she said.
Whatever the legal arguments, privacy advocates were hailing the New Jersey decision this past week, noting that public pressure can improve transparency and, sometimes, even change surveillance.
EFF reported earlier this month on another example – Santa Clara County, which includes much of Silicon Valley, adopted a set of policies imposing more oversight and transparency requirements on mass surveillance of any type.
All agencies, from police to mass transit, will have to get approval from the county Board of Supervisors before even purchasing equipment. They will also have to submit usage policies providing protections for civil rights and civil liberties for board approval and will have to submit annual reports on how the equipment is deployed.
However, another effort, while it made progress, eventually stalled. The Maryland State Senate approved a bill in March that would have allowed audio recording on mass transit buses only in the vicinity of the driver and only if the driver turned the system on during an incident or it was automatically activated during a problem such as sudden braking or a crash. It also would have imposed penalties if the audio tapes were improperly disseminated.
But that bill died at the end of the session when it didn’t get a vote in the House.
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