We joined the ACLU, ACLU of Massachusetts, and EFF in filing an amicus brief in the Massachusetts Supreme Judicial Court arguing that the Fourth Amendment and the Massachusetts State Constitution prohibit warrantless, persistent video surveillance of the front of a home. In Commonwealth v. Mora, the Massachusetts State Police had installed several pole cameras in front of defendants’ homes. These pole cameras enabled police officers to watch video feeds of the comings and goings at two homes in real time, to pan the cameras, and to zoom in close enough to read license plates of cars in the driveways. Officers recorded for several months so they could search through and review the footage at their convenience. No warrant was secured prior to installing the cameras, nor was the surveillance subject to any kind of judicial oversight. The government argued that invasive, persistent, and warrantless surveillance of not only the homes of these defendants, but the home of any person in Massachusetts, is permissible.
As we did last year in another pole camera case in Masachussetts, we argued that the Supreme Court’s reasoning in United States v. Carpenter extends to the facts of this case. In Carpenter, the Court acknowledged that, “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere,” and held that law enforcement must get a warrant to secure seven or more days of historical location data. Just as collecting historical location data over time reveals personal and sensitive information about an individual, so too does months of video surveillance of the front of a person’s home. The police could infer from such surveillance intimate personal relationships, and political or religious beliefs. Technical advances have removed resource limitations that once effectively prohibited extended location tracking, and have made video surveillance cheaper, and more invasive. Furthermore, intelligent video analytics make the product of such lengthy surveillance easily searchable.
If the Court determines that the Fourth Amendment permits the video surveillance in this case, nothing prevents law enforcement from installing cameras in front of every home in Massachusetts. And, as the brief notes, such a reality will have a disproportionate impact on poor people who may not be able to afford to live in homes and neighborhoods in which use of these pole cameras is difficult if not impossible. We don’t think the Fourth Amendment tolerates this vision for our society, and we hope the Court agrees.