[Congressional Record Volume 156, Number 53 (Thursday, April 15, 2010)]
[Senate]
[Pages S2379-S2381]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Feingold, and Mr. Kaufman):
  S. 3214. A bill to prohibit any person from engaging in certain video 
surveillance except under the same conditions authorized under chapter 
119 of title 18, United States Code, or as authorized by the Foreign 
Intelligence Surveillance Act of 1978; to the Committee on the 
Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
the Surreptitious Video Surveillance Act of 2010, on behalf of Senator 
Feingold, Senator Kaufman, and myself.
  This is a bill which I submit is necessary to protect our citizens 
from unwarranted intrusions in their homes. The bill regulates the use 
of surreptitious video surveillance in private residences where there 
is a reasonable expectation of privacy.
  Earlier this year, in Lower Merion Township, a suburb of 
Philadelphia, it was discovered that laptops taken home by students 
could be activated by school officials and thereby see what was going 
on inside a private residence.
  Surprisingly, this kind of surreptitious surveillance is not 
prohibited under Federal law. The wiretap laws specify it is a 
violation of law to intercept a telephone conversation or to have a 
microphone that overhears a private conversation, but if it is visual, 
there is no prohibition.
  This issue has been in the public domain since 1984--more than 25 
years ago--when Judge Richard Posner, in the case captioned U.S. v. 
Torres, said this:

       Electronic interception, being by nature a continuing 
     rather than one-shot invasion, is even less discriminating 
     than a physical search, because it picks up private 
     conversations (most of which will usually have nothing to do 
     with any illegal activity) over a long period of time. . . . 
     [E]lectronic interception is thought to pose a greater 
     potential threat to personal privacy than physical searches. 
     . . . Television surveillance is identical in its 
     indiscriminate character to wiretapping and bugging.

  Judge Posner identified the problem a long time ago. Yet it lay 
dormant until this incident in Lower Merion Township brought it into 
the public fore.
  On March 29, in my capacity as chairman of the Judiciary Subcommittee 
on Crime and Drugs, we conducted a hearing in Philadelphia. We had an 
array of experts very forcefully identify the problem and the need for 
corrective action.
  The New York Times editorialized, on April 2, 2010, in favor of this 
legislation.
  I urge my colleagues to take a look at the bill. I think there is 
likely to be widespread acceptance that in an era of warrantless 
wiretaps, when privacy is so much at risk, we ought to fill the gap in 
the law to cover this kind of electronic surveillance.
  Mr. President, I ask unanimous consent that a copy of the New York 
Times editorial dated April 2, 2010, the text of my full statement and 
the text of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 2, 2010]

                      Editorial: About That Webcam

       A Pennsylvania town has been roiled by a local high school 
     using cameras in school-issued laptops to spy on students. 
     Almost as shocking is the fact that the federal wiretap law 
     that should prohibit this kind of surveillance does not cover 
     spying done through photography and video in private 
     settings.
       Senator Arlen Specter, a Democrat of Pennsylvania, is 
     proposing to amend the federal wiretap statute to prohibit 
     visual spying that is not approved by a court in advance. 
     Congress should move quickly to make this change.
       Lower Merion, outside of Philadelphia, gave students at 
     Harriton High School laptops that they could take home to use 
     to do their work. It did not tell the students, however, that 
     the laptops were equipped with special software that allowed 
     them to observe the students through the computers' built-in 
     cameras. The purpose, the school district later explained, 
     was to protect the laptops from theft or damage.
       Using this surveillance capability, school officials found 
     images that led them to believe that Blake Robbins, a 15-
     year-old student, was using illegal drugs. Mr. Robbins said 
     the ``pills'' he was seen consuming were Mike and Ike 
     candies. His parents filed a lawsuit against the school 
     district, charging that it had illegally spied on their son.
       Conducting video surveillance of students in their homes is 
     an enormous invasion of their privacy. If the district was 
     really worried about losing the laptops, it could have used 
     GPS devices to track their whereabouts or other less-
     intrusive methods. Whatever it did, the school had a 
     responsibility to inform students that if they accepted the 
     laptops, they would also accept monitoring.
       The law should also do more. The Wiretap Act prohibits 
     electronic eavesdropping on conversations and intercepting 
     transmitted communications, such as e-mail. It does not cover 
     visual surveillance. That was a mistake when parts of the law 
     were passed in 1986, but it is an even bigger problem today, 
     with the ubiquity of cellphone cameras, and online video 
     services.
       The act should be amended to prohibit video and 
     photographic surveillance of people without their consent in 
     their homes, hotels, and any other place in which they have a 
     legitimate expectation of privacy.
                                  ____


      Floor Statement of Senator Arlen Specter in Support of the 
              Surreptitious Video Surveillance Act of 2010

       Mr. President, I have sought recognition to introduce the 
     Surreptitious Video Surveillance Act of 2010, a bill needed 
     to protect our citizens from unwarranted intrusions in their 
     homes. This bill regulates the use of surreptitious video 
     surveillance in private

[[Page S2380]]

     residences where there is a reasonable expectation of 
     privacy.
       In February of this year, national and international news 
     stories covered an alleged incident in the Lower Merion 
     School District in Montgomery County, PA. According to a 
     lawsuit filed in Federal court, the Harriton High School 
     administrators in Lower Merion allegedly engaged in 
     surreptitious video surveillance of a student in his bedroom 
     by using a remotely activated webcam on a school laptop. If 
     these allegations are true, the school engaged in a 
     significant invasion of an individual's fundamental right of 
     privacy. Michael and Holly Robbins, parents of the high 
     school student, allege that the school used a webcam, which 
     was part of a theft tracking software program installed in 
     each school-issued laptop, to remotely take photographs of 
     their son in their home. The parents allege that the school 
     district's actions amounted to ``spying'' and conducting 
     unlawful ``surveillance,'' and they claim that they were not 
     given prior notice that the school could remotely activate 
     the embedded webcam at any time.
       This is something that could happen almost anywhere and at 
     any time in our country. Many corporations, government 
     agencies and schools loan laptops to employees and students. 
     And many of these laptops have webcams with the ability to 
     take video or still shots that can be operated remotely.
       The alleged webcam spying case raises important and 
     fundamental issues concerning the rights of individuals to 
     privacy in their homes for themselves and for their children, 
     and shows how those rights can conflict with important rights 
     that owners of property have to conduct surveillance to 
     protect their property and to maintain safety.
       On Monday, March 29, 2010, I chaired a Subcommittee on 
     Crime and Drugs field hearing in Philadelphia, Pennsylvania. 
     At that hearing, we heard from a host of experts that Title 
     III of the Omnibus Crime Control and Safe Streets Act, known 
     as the Federal Wiretap Act, does not forbid video 
     surveillance. Title III creates criminal and civil liability 
     for secretly recording conversations in a room or on the 
     telephone, as well as interceptions of email communications, 
     without a court order. But since the Wiretap Act was passed 
     in 1968, it has never covered silent visual images. This 
     conclusion is supported by a large body of case law and is 
     also bolstered by Congress' clear legislative history. After 
     studying the matter, I announced that I would introduce 
     legislation to close this gap in coverage. On April 2, 2010, 
     the New York Times editorial page noted I would introduce 
     legislation ``to amend the federal wiretap statute to 
     prohibit visual spying that is not approved by a court in 
     advance'' and went on to say, ``Congress should move quickly 
     to make this change.''
       Technology is changing fast--faster than our federal laws 
     can keep up. More than 25 years ago, Judge Richard Posner in 
     United States v. Torres, 751 F.2d 875, 884-885 (7th Cir. 
     1984), saw the need for Congress to address video 
     surveillance when he wrote:

       Electronic interception, being by nature a continuing 
     rather than one-shot invasion, is even less discriminating 
     than a physical search, because it picks up private 
     conversations (most of which will usually have nothing to do 
     with any illegal activity) over a long period of time . . . 
     [E]lectronic interception is thought to pose a greater 
     potential threat to personal privacy than physical searches . 
     . . Television surveillance is identical in its 
     indiscriminate character to wiretapping and bugging (emphasis 
     in original).

     Holding that Title III did not apply to secret television 
     cameras placed by the government in a safe house to observe 
     members of the FALN terrorist organization build bombs, Judge 
     Posner specifically invited Congress to respond ``to the 
     issues discussed in this opinion by amending Title III to 
     bring television surveillance within its scope.''
       The bill I am introducing today, the Surreptitious Video 
     Surveillance Act of 2010, makes that long overdue correction 
     to the law. The bill strikes the necessary and correct 
     balance of protecting important privacy rights without 
     proscribing the visual surveillance needed to protect our 
     property and safety. It does this simply by amending the 
     Federal Wiretap Act to treat video surveillance the same as 
     an interception of an electronic communication. Video 
     surveillance is defined in the bill to mean the intentional 
     recording of visual images of an individual in an area of a 
     residence that is not readily observable from a public 
     location and in which the individual has a reasonable 
     expectation of privacy.
       The bill does not regulate video surveillance where another 
     resident or individual present in the residence consents to 
     the surveillance. Thus, the bill does not regulate cameras in 
     the workplace, does not prohibit the use of cameras in 
     undercover operations using confidential informants, and does 
     not include residential security systems that use video 
     cameras.
       Many of us expect to be subject to certain kinds of video 
     surveillance when we leave our homes and go out each day--at 
     the ATM machine, at traffic lights, or in stores for example. 
     We expect this and we do not mind because we understand that 
     such surveillance helps to protect us and our property. What 
     we do not expect, however, is to be under visual surveillance 
     in our homes, in our bedrooms, and most especially, we do not 
     expect it for our children in our homes. Today cameras in 
     computers and in cell phones are ubiquitous, making it more 
     urgent that the Federal Wiretap Act be amended to prohibit 
     video surveillance of people without their consent in their 
     homes. I urge the Senate to make this long overdue correction 
     to the law and pass this bill quickly to protect important 
     privacy rights of all Americans.
                                  ____


                                S. 3214

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Surreptitious Video 
     Surveillance Act of 2010''.

     SEC. 2. PROHIBITION ON USE OF VIDEO SURVEILLANCE.

       (a) In General.--Chapter 119 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2523. Prohibition on use of video surveillance

       ``(a) Definition.--In this section, the term `video 
     surveillance' means the intentional acquisition, capture, or 
     recording of a visual image or images of any individual if--
       ``(1) the individual is in an area of a temporary or 
     permanent residence that is not readily observable from a 
     public location;
       ``(2) the individual has a reasonable expectation of 
     privacy in the area; and
       ``(3) the visual image or images--
       ``(A) are made without the consent of--
       ``(i) an individual present in the area; or
       ``(ii) a resident of the temporary or permanent residence; 
     and
       ``(B) are--
       ``(i) produced using a device, apparatus, or other item 
     that was mailed, shipped, or transported in or affecting 
     interstate or foreign commerce by any means; or
       ``(ii) transported or transmitted, in or affecting, or 
     using any means or facility of, interstate or foreign 
     commerce, including by computer.
       ``(b) Prohibition on Video Surveillance.--It shall be 
     unlawful for any person to engage in any video surveillance, 
     except--
       ``(1) as provided in this section; or
       ``(2) as authorized under the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
       ``(c) Treatment as Electronic Surveillance.--
       ``(1) In general.--Subject to paragraph (2)--
       ``(A) video surveillance shall be considered to be an 
     interception of an electronic communication for the purposes 
     of this chapter; and
       ``(B) it shall not be unlawful for a person to engage in 
     video surveillance if the video surveillance is conducted in 
     a manner or is of a type authorized under this chapter for 
     the interception of an electronic communication.
       ``(2) Exception.--Sections 2511(2)(c), 2511(2)(d), 2512, 
     2513, and 2518(10)(c) shall not apply to video surveillance.
       ``(3) Prohibition of use as evidence of video 
     surveillance.--
       ``(A) In general.--No part of the contents of video 
     surveillance and no evidence derived from video surveillance 
     may be received in evidence in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     officer, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof if the disclosure of the video 
     surveillance would be in violation of this chapter.
       ``(B) Motion to suppress.--
       ``(i) In general.--Any aggrieved person in any trial, 
     hearing, or proceeding described in subparagraph (A) may move 
     to suppress the contents of any video surveillance conducted 
     under this chapter, or any evidence derived from the video 
     surveillance, on the grounds that--

       ``(I) the video surveillance was unlawfully conducted;
       ``(II) the order of authorization or approval under which 
     the video surveillance was conducted was insufficient on its 
     face; or
       ``(III) the video surveillance was not conducted in 
     conformity with the order of authorization or approval.

       ``(ii) Timing of motion.--A motion made under clause (i) 
     shall be made before the trial, hearing, or proceeding 
     unless--

       ``(I) there was no opportunity to make such motion; or
       ``(II) the aggrieved person described in clause (i) was not 
     aware of the grounds of the motion.

       ``(iii) Remedy.--If the motion made under clause (i) is 
     granted, the contents of the video surveillance, or evidence 
     derived from the video surveillance, shall be treated as 
     having been obtained in violation of this chapter.
       ``(iv) Inspection of evidence.--The judge, upon filing of a 
     motion under clause (i), may, in the discretion of the judge, 
     make available to the aggrieved person or counsel for the 
     aggrieved person for inspection such portions of the video 
     surveillance or evidence derived from the video surveillance 
     as the judge determines to be in the interests of justice.
       ``(v) Right to appeal.--

       ``(I) In general.--In addition to any other right to 
     appeal, the United States shall have the right to appeal from 
     an order granting a motion made under clause (i), or the 
     denial of an application for an order of approval, if the 
     United States attorney certifies to the judge or other 
     official granting the motion or denying the application that 
     the appeal is not taken for purposes of delay.

[[Page S2381]]

       ``(II) Filing deadline.--An appeal under subclause (I) 
     shall--

       ``(aa) be taken within 30 days after the date the order was 
     entered; and
       ``(bb) be diligently prosecuted.''.
       (b) Chapter Analysis.--The table of sections for chapter 
     119 of title 18, United States Code, is amended by adding at 
     the end the following:

``2523. Prohibition on use of video surveillance.''.
                                 ______