Larry Lessig has written a brief note about a California Appeals Court decision that eviscerated privacy rights in cybercafes (mandated telescreen upheld). There is a Law.com article here (Internet Cafe Ordinance Sparks War of Words). Read the decision (Thany Thuy Vo v. City of Garden Grove [PDF]). The issue that has Prof. Lessig rightfully incensed is an operational requirement for cybercafes that forces them to monitor (read over the shoulder) what people are doing on cybercafe screens, whether it is reading email, browsing the web or playing a game of Counter Strike. However, there are other major issues involved and the decision has some very important victories in it for those who care about the First Amendment.

The ordinance in the City of Garden Grove was initially passed as a typical political overreaction to some isolated violence associated with a handful of cybercafes in the city. Places where young people, particular young males, spend time are almost always suspect in the eyes of older citizens. Cybercafes attract many young males. Think this revised chorus from "The Music Man":

Trouble, oh we got trouble,
Right here in Garden Grove City!
With a capital "T"
That rhymes with "C"
And that stands for Cyber,
That stands for Cyber.
We've surely got trouble!
Right here in Garden Grove City,
Right here!
Gotta figger out a way
To keep the young ones moral after school!
Trouble, trouble, trouble, trouble, trouble...

The evidence of trouble in Garden Grove City was basically anecdotal:

By memorandum of December 31, 2001, Joseph M. Polisar, the city’s chief of police, advised the city manager of the rapid growth in the number of CyberCafes operating in the city. In the space of two years, the number of these establishments had risen from three to a total of twenty. Polisar’s memorandum detailed seven incidents of criminal activity occurring in or near four different CyberCafes during the last three months of 2001. Five of the seven incidents involved gang activity. The most recent incident, occurring the day before the memorandum was written, was the murder of a 20-year-old male while he was standing in front of a CyberCafe. Polisar also reported that patrol officers were finding school aged children at these establishments during school hours, and he expressed concern about minors being able to access inappropriate and dangerous web sites. Polisar concluded: “[T]he Police Department believes that it is vital that the City enact an ordinance regulating the use of ‘Cyber Café’s [sic].’”

Heavens to Betsy! A whole seven incidents of crime! The murder was a terrible thing, but people are frequently murdered outside many other establishments as well. And my, oh, my, minors might access inappropriate dangerous web sites. Someone ought to do somethings about those libraries and schools, where children might also access inappropriate information. Seriously, read the dissent for an analysis of how much "trouble" these cybercafes really create. The original "study" by the police was a joke. For example, there are no baseline comparisons to similar business or general crime rates. If this sort of "study" were valid, one could find that any business was dangerous to the well-being of the community. Do you know how many shoplifting violations stores create?

In any case, the ordinance was passed and attacked the "problem" several different ways, with zoning and other permit requirements. The first ordinance was clearly not going to pass judicial muster, so the city revised it. The revised ordinance is what the decision considers.

One of the most important parts of the decision is that the court declares quite clearly that cybercafes enjoy First Amendment protections, much as book publishers and movie theaters:

We perceive no rationale by which CyberCafes should be accorded less protection than any of these older or more traditional businesses. As the court below aptly observed, “The targeted business is a gateway to the information super highway [—] the modern new location for information’s dissemination.” [citation omitted]

This may seem obvious (because it is), but it hasn't been obvious to many courts previously. Most of the regulations of cybercafes has been based on regulations similar to those for videogame arcades and penny arcades. Most courts have not found that videogame arcades and penny arcades have protected First Amendment status. You see, games aren't protected speech, apparently. Anyway, since cybercafes also provide access to email and the internet, regulation aimed at them does raise First Amendment issues. It would have been nice to see language about videogames being covered by the First Amendment too, this is still a significant victory.

One of the reasons is that regulation aimed at First Amendment protected businesses must beat a slightly higher standard of judicial scrutiny, as opposed to regular businesses which can be regulated almost at a whim. For example, regulations of First Amendment protected businesses must be regulated according to "objective measurement." Which doesn't mean really "objective" but does mean there can't be too much leeway for the regulators making the decision. Basically, business regulations must meet a somewhat special version of the same test used for "time, place and manner" speech restrictions.

Conditional Use Permits

Probably the most important aspect of the ordinance, from an immediate, practical point of view, was the requirement that cybercafes needed to have a Conditional Use Permit (CUP). A CUP is basically a zoning regulation that lets a city veto (through a public hearing process) particular businesses that would otherwise be permitted. Obtaining a CUP can be very expensive, time-consuming and easily turned down, even after one has gone through all the trouble of applying for one. Typical CUP ordinances can be quite vague and arbitrary. For example, here is a passage on CUPs from the city of Los Angeles:

In approving any conditional use, the decision-maker must find that the proposed location will be desirable to the public convenience or welfare, is proper in relation to adjacent uses or the development of the community, will not be materially detrimental to the character of development in the immediate neighborhood, and will be in harmony with the various elements and objectives of the General Plan.

What the heck does the above mean? What it means is that a CUP can basically be denied if the decision-maker (frequently the head of zoning) doesn't like your business. This can be very troublesome from a civil liberties point of view, especially when one is regulating First Amendment protected businesses. Luckily, the California Supreme Court has held that "A long line of decisions has held unconstitutional ordinances governing the issuance of licenses to conduct First Amendment activities where administrative officials were granted excessive discretion in determining whether to grant or deny the license."

Accordingly, the court completely invalidated the City of Garden Grove's CUP-based regulations as applied to cybercafes.

This is an important victory because cybercafes throughout the state are being regulated, primarily through the CUP process. Indeed, in the city of Los Angeles itself, the city is using CUPs to regulate cybercafes under an antiquated statute for "penny arcades." CUPs have been challenged by videogame arcades as violating the First Amendment previously, but have always lost.

Daytime Curfew for Minors

Here the court allows the city to deny minors access to cybercafes during school hours unless accompanied by a parent or guardian. Without going into detail here, let me make a few quick points:

• The regulation wasn't justified by recourse to truancy laws, but rather to the dangers of exposing minors to gang violence and activity.
  
• However, minors were allowed to be in the cybercafes unaccompanied during the afternoon and evenings.
  
• There was no evidence provided to show that there was gang violence or activity during the day, as opposed to the afternoons and evenings.
  

Employee and Security Guard Requirements

The city requires at least one employee over the age of 18 (and an additional employee if there are more than 30 computers), as well as a security guard on Friday and Saturday evenings from 8pm to 2am. The court decided that these requirements were narrowly tailored to prevent gang violence. I believe they are correct on the age of 18 requirement. However, there was never any evidence of gang violence at more than a few of more than 20 different establishments. It hardly seems narrowly tailored that all cybercafes should be burdened with expensive, state-licensed security guards when there may only be problems at a handful of similar businesses. Moreover, the burden is substantial. Cybercafes are not major profit centers generally speaking, and the additional cost associated with more employees and security guards can mean the difference between a marginally successful business and an unsuccessful business.

Privacy

Here the decision really is Big Brother-ish. The court describes the ordinance thus:

section 8.82.020, subdivision (8) to the Garden Grove Municipal Code, ... requires CyberCafes to install a video surveillance system. The video system must be “capable of delineating on playback . . . the activity and physical features of persons or areas within the premises,” and must “cover all entrances and exit points and all interior spaces, excepting bathroom and private office areas.” “The system shall be subject to inspection by the City during business hours” and “[t]he videotape shall be maintained for a minimum period of 72 hours.”

The court concludes and the City of Garden Grove stipulates, that the information collected can only be turned over to authorities according to legal process, such as a search warrant. That is fine as far as it goes, though the ordinance could have been a little more clear on the point. However, that is not really the issue.

The issue is whether the government needs legal process to obtain certain information, but whether the government can require First Amendment protected business to create and retain such information in the first place. Yes, if information is being gathered and stored about First Amendment activities, of course the government should have to use legal process to obtain that information. But should the government be allowed to require the maintenance of such records in the first place? According to this decision, that isn't even a question.

Whatever that [privacy] interest is, it surely is not “fundamental to personal autonomy.” People don’t do things “fundamental to personal autonomy” in a public retail establishment. The dissent throws the reader off track by confusing the privacy issue with the free speech issue, asserting that CyberCafes “are the poor man’s printing press and private library.” As we have pointed out in the majority opinion, reasonable expectations of privacy in the setting of a CyberCafe are simply not present.

I guess exercising your First Amendment rights is not fundamental to personal autonomy. What a strange vision of personal autonomy. Even if personal autonomy were an issue, the fact that there is human "surveillance" is sufficient to allow government to require electronic surveillance.

The court even goes so far as to say that the presence of human surveillance, such as the employee or security guard, is the same as the unblinking eye of a video camera:

Turning to what the video surveillance portion of the ordinance does say, we are not persuaded the video surveillance system affects First Amendment activity any more than does the presence of an adult employee and/or security guard.

In a footnote, the court jests at any concern:

If an employee had a 72-hour photographic memory, would we make him unemployable because his presence would invade the privacy of the customers?

So, apparently, the court sees no differnce between a human and a computer database. This is truly bizarre. When I read a book at a station in a library, of course a librarian and other patrons might see me reading the book. Still, I would know if someone is looking over my shoulder (social practice would prevent extended viewing) and I am well aware that human memory is quite fallible. I don't worry that the local cashier at the bookstore is remembering all my book and magazine purchases, but I am concerned that the laser scanner/computer is remembering everything I buy using a "frequent buyer discount card."

Apparently, this distinction is of no consequence to the Constitution:

That the video system has a 72-hour memory that may be better than the short-term memory of the average security guard, customer, or employee is not a distinction of constitutional significance on First Amendment grounds.

The court goes on to analyze the privacy rights according to the California State Constitution. The court basically finds that:

A person’s physical features are not “confidential,” nor are activities on the premises of a public retail establishment. No legally recognized informational privacy right can attach to either. Nor can it reasonably be understood that the observation of persons using a computer in a CyberCafe involves intrusion either on the making of an intimate personal decision or on the conduct of a personal activity. Plaintiffs do not explain why observation by a video camera intrudes on privacy any more than observation by employees or other patrons.

The closest analogy I can think of to show how wrong-headed this decision is, is to public telephones, which are frequently located on the premises of public retail establishments. Additionally, it happens that conversations on such public telephones might be observed (heard) by employees or other patrons (particularly those who are waiting in line to use the public telephone). Nevertheless, would it therefore be permissible to require all public telephones to be wiretapped and the recordings held for 72-hours? In Katz v. United States, the Supreme Court said wiretapping a public telephone booth was a violation of the Fourth Amendment. The telephone booth in question was enclosed in glass, but I don't think the decision would have been different if the telephone had been in an open booth. I certainly don't think the Supreme Court would have allowed pre-emptive wiretapping of all public telephones.

No More Privacy - Get Used to It

Of course the decision in Katz was also based on a "reasonable expectation of privacy." But apparently, we no longer have any reasonable expectation that we are not constantly under video surveillance in all public areas.

A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” With the near ubiquitous use of video surveillance in retail establishments, at automated bank teller machines, and at road intersections, it is difficult to imagine, certainly at the preliminary injunction stage, that the customer’s expectation of privacy is reasonable under the circumstances.

Wow. I'll say it again, wow. Now we have to prove that we don't expect to be constantly videotaped in public.

The Dissent

Highly recommended reading. The dissent is a blistering attack on the majority decision and I must say the judge really does seem to understand what is going on. The dissent discusses blogging, for example, and cybercafe regulation in totalitarian societies, such as China and Vietnam. If you are interested in privacy, read it.