By Carol W. LaGrasse
March 15, 2005
For over ten years, PRFA has led the way in exposing new infringements on privacy under the mantras of environmentalism, zoning, and building regulation. These infringements on the right to privacy guaranteed in the Fourth Amendment to the U.S. Constitution are becoming powerful tools in the hands of those who would deny our Fifth Amendment property rights protections.
During 1994, I wrote what I believe was the first exposé in the country of the use of computerized mapping, or GIS (geographical information systems), to study private property and efficiently enforce extreme environmental regulations. At that time, I was studying the annual financial reports of New York's super-zoning agency, known as the Adirondack Park Agency (APA), which reigns over six million acres of half and half private and government-owned land in northern New York. I was trying to find out why, if you divided the APA's annual budget by the number of permits issued, the agency's operating cost was a mind-boggling $10,000 per permit, mainly for small projects and single-family homes.
Buried here and there in the voluminous annual reports to the state legislature was a revelation. As a civil engineer, I understood the power of mapping and digitalized information. The importance of technological capacity that the APA was developing was immediately apparent to me.
I was surprised to discover that APA was setting up a digitalized system of environmental overlay mapping, which I concludedcorrectly, it turned outwas the most advanced GIS capacity in the country.
The APA was digitalizing its regulatory land-use maps to a nationally uniform coordinate system. In the process of modernization, the U.S. Geological Survey maps were already digitalized to the same coordinate system. These could be superimposed to show all roads and topographical features on the APA zoning maps. At the time, tax maps were being digitalized, county by county, to the same coordinate system. The Nature Conservancy's Natural Heritage System, where wildlife was being inventoried for regulatory purposes, was also being harmonized to computerized maps. The APA financial reports revealed that the agency was under contract to the U.S. Environmental Protection Agency to create coordinate-based wetlands maps. Limited, but increasingly good quality surveillance photos from space, which existed at the time, could also be entered into the coordinate-based system.
In all, I counted forty categories of land-based information that were capable of coordinate-based overlay mapping, or GIS. These systems of land-based information could be layered without the old-fashioned use of transparent maps, but, rather, by clicking on a computer and viewing or printing out maps with any and all information combined in one view.
I summarized the results of my research in a report entitled, The APA Shell Game, How New York's Adirondack Park Agency is Becoming the World's Foremost Environmental Snoop. In the first chapter, I wrote:
"The APA has been setting up a system whereby when a bureaucrat punches in a property owner's tax lot number, out will instantaneously come the owner's APA land classification, acreage, soil type, buildings in detail down to interior finishes, dates of construction of every part of the house, permit history and much more, superimposed on other automated diagrams showing wetlands, threatened and endangered species, and significant habitats, and other biological information."
The efficiency of harnessing coordinate-based mapping at such a sophisticated level to enforce environmental law represented a giant step forward for the nation's most radical system of land-use regulation, and a foreboding development for property owners.
New York State Assemblyman Chris Ortloff circulated The APA Shell Game to every member of the legislature. A number of news reports appeared. The environmentalists attacked me for being afraid of technology. But interest in the report quickly peaked. No legislation was submitted to protect privacy.
My husband Peter LaGrasse, the chairman of the Stony Creek Board of Assessors, tried to get legislation introduced to exempt computerized assessment information from access to any but assessment agencies. He warned officials, as well as the public, about the change in circumstances from the old system, when assessment information was on data sheets or index cards, which meant that, in a practical sense, it was not available for environmental land-use enforcement. With computer entry into the state's central system, he pointed out, assessment records became automatically accessible.
However, although other assessors in the region initially supported such legislation, they backed off. A few years later, I observed an official at a public meeting express pride about his town's ability to coordinate its computerized real estate tax assessment work with the regional environmental regulatory agency. To this day, upstate property owners unwittingly admit real estate tax assessors to the immediate area around their houses and into their houses, even though, if the property owner refuses access, these areas are not accessible without a search warrant.
Interest arose sporadically in the privacy issues related to GIS and space photography. For instance, in 1995, an exhaustive article about a wide range of legal and policy implications of GIS appeared in the journal of the Florida Bar Association, where Scott D. Makar and Michael R. Makar, Jr., noted, "GIS poses a challenge for public policy makers under Florida's constitution which establishes a free-standing right to privacy."
In early 1998, three years after The APA Shell Game was published, the American Bar Association reportedly became concerned about space surveillance as a means of law enforcement. At the time, American municipalities had such strong demand for space photos to monitor building and zoning enforcement that some were contracting with Sovinformsputnik, the Russian space agency, to purchase space photos of their jurisdictions. To some lawyers, a privacy issue seemed to be raised. However, although the Bar Association set up a prestigious task force, no legislation resulted to protect property owners from aerial snooping.
While municipal officials became avid users of surveillance, court rulings on privacy rights have been mixed. The U.S. Supreme Court does not support the right of property owners to the privacy of areas that can be viewed from the air for law enforcement purposes, even if the view is of a hidden private yard.
Meanwhile, the Property Rights Foundation of America inaugurated its web site in 2001. We could reach out further to publicize the issue of environmental snooping. It so happened, however, that we remained the only organization in New York displaying noticeable concern about the state's infringements on privacy in the name of environmental regulation.
One of the first articles to appear on our web site was my description of New York's fly-over photographic coverage of the entire state, to be completed during 2001 and 2002. The article, "GIS is Flying in New York StateEntire State to be Covered," outlined in clear, simple English the threat to privacy intrinsic to what would be the most ambitious state orthoimagery program in the country. Every square inch of property was to be photographed from low-level flights and the photos to be digitalized, enabling planners throughout the state to have an exciting new tool. The photographic resolution in most of the state would be two ground feet, but in urban locations and "environmentally sensitive areas," including the entire Adirondack and Catskill regions, one ground foot. This means that an ordinary sheet of paper on a picnic table, the outline of tiles on a terrace, or a handrail on a walkway, would be discernible. The higher order of accuracy for the Adirondacks and Catskills was intended specifically for the purpose of zoning compliance, according to a spokesman whom I interviewed from the State Office of Technology.
Alone in the entire state, PRFA protested this new, more powerful intrusion on privacy, this new efficiency of environmental snooping. Government officials at several levels were entranced at the prospect of clicking on the computer and viewing every detail of information about a property, layer by layer, starting from fine photographic delineation, down through tax maps, wildlife information, zoning area boundaries, and so on. The announcement of the fly-over program promised planning and zoning officials that they'd even have selected views of the property from different angles and locations, and at other scales.
Four more years have passed. The remarkable GIS system is fully in place, beginning with the computerized maps and many overlays of data base systems, and completed with the computerized high-resolution photo-imagery from the low-level fly-overs. Property owners reportedly are beginning to notice that the Adirondack Park Agency is visiting them with citations for violations as a result of viewing their property on the low-level fly-over photos.
However, there is still more. The individual movements of citizens also must be monitored, because individual actions unrelated to forbidden land-use development can also violate environmental law. This year, PRFA was obligated to publicly express its outrage at the friendly lawsuit "settlement" between the APA and the radical environmental group called the "Residents Committee to Protect the Adirondacks." This secretly negotiated deal established a formal system for neighbor reporting on neighbor for wrongful actions while on the state's three million acres of land in the Adirondacks.
The idea of harnessing citizens to report on each other is not new, of course, and, considering the Nazis and Communists, is in a very nasty tradition. In the U.S., environmental snitch systems are growing. The new APA citizen informant system is typical of government programs of this nature that are being instigated in conjunction with environmental groups.
In my opinion, the issue of environmental snooping and snitching is of paramount importance. Alone among freedom and property rights organizations, PRFA has pioneered with research and public information about this threat to fundamental privacy rights. But the public has to wake up if this tide of infringements on our constitutional right to privacy is to be reversed.