- 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.
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- "[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.
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- 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."
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- 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.
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- 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.
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- Orange Superior Court Judge Dennis S. Choate granted
the plaintiffs' motion for preliminary injunction, barring the city from
enforcing the above requirements.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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."
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- He declared:
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- "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."
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- The case is Vo v. City of Garden Grove, 04 S.O.S. 464.
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- Copyright 2004, Metropolitan News Company
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- http://www.metnews.com/
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