Earlier this week, the Center for Democracy & Technology filed an amicus brief in the First Circuit Court of Appeals in United States v. Moore-Bush arguing that persistent, warrantless law enforcement video surveillance of a home constitutes an unreasonable search. For eight months, without a warrant, law enforcement placed a home under persistent video surveillance using a camera placed on a utility pole (‘pole camera’). With a view of the driveway and the front of the house, law enforcement officers could—remotely and at their leisure—monitor the comings and goings of the residents of the home, their visitors, and any passers-by. The camera could be remotely panned, tilted, and zoomed in, and the recorded footage could be reviewed via a searchable digital log.
A few months ago a federal District Court in Massachusetts held that the surveillance in this case constituted a search. It cited Carpenter v. United States for the proposition that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere” and maintains a reasonable expectation of privacy “in the whole of their physical movements.” As we noted at the time of the ruling, the holding represented one of the first significant applications of the reasoning the Supreme Court used in Carpenter to extend warrant protection to historical location information. The government appealed the ruling, and we intervened on the side of Appellees.
We argued the District Court got it right—that ‘digital is different.’ Carpenter’s reasoning rejected the notion that we give up all expectations of privacy the moment we take one step out of our homes. Just as in the cell phone location tracking in Carpenter and the GPS car tracking in United States v. Jones, persistent video surveillance “provides an intimate window into a person’s life” that has the potential to reveal “not only [a person’s] particular movements, but through them, his ‘familial, political, professional, religious, and sexual associations.’” In fact, this surveillance can provide a more robust depiction of an individual’s activities, revealing such information as a person’s clothing, what they carry into and outside of their home, and who their visitors are, as compared to the inferences that can be drawn from location tracking. Further, just as in Carpenter, recorded video surveillance of an individual’s home permits law enforcement to “travel back in time to retrace a person’s whereabouts.”
If the First Circuit determines that a warrant is not needed to conduct eight months of persistent video surveillance of a private home, there is nothing that will prevent law enforcement officials from placing a video camera in front of every home
Similarly, CDT highlighted the history of the home as a bedrock of Fourth Amendment protection, a legacy which points to heightening protections against persistent video surveillance that would “leave the homeowner at the mercy of advancing technology” (Kyllo v. United States). We also distinguished some key cases. In the past, the Supreme Court has found that the use of a helicopter above an individual’s home to spot marijuana plants did not violate a reasonable expectation of privacy observing that the fact “[t]hat the area is within the curtilage does not itself bar all police observation. The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” The government relied heavily on this holding to justify their conduct. However, we noted there is an obvious difference between a one time pass over someone’s home and the longer term monitoring that occurred here that can, as Justice Alito wrote in his concurrence in Jones, “impinge on expectations of privacy.”
Finally, we warned the Court that advances in video surveillance technology diminish the practical disincentives that guard against law enforcement conducting suspicionless, persistent monitoring of individuals. In the past, law enforcement officers would have had to conduct a resource-intensive stakeout and work to mask their presence. Resource expenditure is, in effect, an important check on abuses of executive investigative authority. But today, persistent video surveillance can be cheap and furtive. Furthermore, the costs to privacy that attend persistent video surveillance grow as video analytics and video management software capabilities advance. The application of facial recognition or license plate reading technology to pole camera footage permits law enforcement to combine data and seamlessly paint a picture of an individual’s associational activity. Video management software employs increasingly sophisticated motion detection to allow hours of footage to be reduced down to a matter of minutes worthy of human review. Some vendors claim they can train software to predict unusual activity such as shoplifting based off of body language. The possibilities seem endless. In crafting its recent technology-related decisions in Carpenter, Jones, and Kyllo, the Supreme Court has consistently kept an eye to the technology of the day and on the horizon, and we encouraged the First Circuit to likewise be mindful of the video surveillance of the not-so-distant future.
If the First Circuit determines that a warrant is not needed to conduct eight months of persistent video surveillance of a private home, there is nothing that will prevent law enforcement officials from placing a video camera in front of every home. They would be free to view—in real time or at their convenience—the activity of private residents going about their day to day lives. We do not believe this spying is tolerated by the Fourth Amendment, and we hope the First Circuit agrees.
Thank you to Trisha Anderson, Alexander Berengaut, and Jadzia Pierce of Covington & Burling LLP for representing CDT on this brief.