Friday, January 30, 2004
Court of Appeal Rules:
Internet Cafes May Be Required to Conduct Video Surveillance
By KENNETH OFGANG, Staff Writer/Appellate Courts
A local ordinance requiring Internet cafes to conduct video surveillance of their customers as an anti-gang measure is constitutional, the Fourth District Court of Appeal ruled yesterday.
“[W]e 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,” Justice Raymond Ikola wrote for Div. Three.
Ikola was joined by Justice William Bedsworth. But Presiding Justice David Sills sharply dissented, saying Ikola’s view “represents a sad day in the history of civil liberties.”
At issue in the case was an ordinance enacted by Garden Grove in 2002 after the city’s police chief reported that there had been seven incidents of criminal activity, five of them gang-related, in or near four different Internet cafes in a three-month period. The last such event was the murder of a 20-year old man standing in front of the cafe.
Several cafe owners challenged the city’s “CyberCafe ordinance” on First Amendment grounds. Among the features they objected to, besides the requirement that they maintain video surveillance and keep the tapes for 72 hours, were requirements that they obtain conditional use permits, keep minors out during school hours unless accompanied by a parent or guardian, keep at least one adult employee on the premises at all times, and have a uniformed security guard on the premises after 8 p.m. on Friday and Saturday nights.
Orange Superior Court Judge Dennis S. Choate granted the plaintiffs’ motion for preliminary injunction, barring the city from enforcing the above requirements.
Ikola, writing for the appellate panel, agreed with the trial judge that the ordinance implicates the First Amendment, since cybercafes are used to exchange ideas. He also concluded that Choate was correct to enjoin enforcement of the permit requirement, which the justice said placed too much discretion in the hands of city officials and could lead to censorship.
But the remainder of the injunction was error, the justice wrote, because the trial judge failed to properly balance the impact of the ordinance on speech against the public interests served by the ordinance.
The city “has a substantial interest in public safety, and in the safety and well being of minors specifically,” he explained, adding that requiring the cafes to keep minors out during school hours, and to keep adults on the premises, will deter gang activity and related problems without seriously impacting the right to use the facility to access information.
As for surveillance, the justice pointed out that nothing in the ordinance purported to allow the police or other officials to view the tapes in the absence of a warrant or other legal cause.
But Sills said that surveillance was still a “big deal.” His colleagues, he said, “approve an ordinance which literally forces a ‘Big Brother’ style telescreen to look over one’s shoulder while accessing the Internet.”
“This is the way Constitutional rights are lost. Not in the thunder of a tyrant’s edict, but in the soft judicial whispers of deference.”
The case is Vo v. City of Garden Grove, 04 S.O.S. 464.
Copyright 2004, Metropolitan News Company