By Evan Ringel, CDT Summer Intern, pursuing a dual degree in law and mass communication at the University of North Carolina at Chapel Hill
In what could be the first significant expansion of the Supreme Court’s finding in Carpenter v. United States, a federal district court in Massachusetts granted a motion to suppress evidence, ruling that police use of a “pole camera” represented a search under the Fourth Amendment. This ruling is an important signal of what may be to come for digital privacy rights and provides a necessary limitation on warrantless government video surveillance.
In United States v. Moore-Bush, the government placed a camera on a utility pole across the street from the house of a suspect in a criminal investigation. The camera was used for eight months to surveil the driveway and the front of the house; law enforcement officers were able to remotely pan and zoom the camera “so as to . . . read license plates” of those entering and exiting the premises. The government did not obtain a warrant to use the pole camera. Instead, law enforcement argued that the use of the camera did not constitute a search because police are allowed to monitor the comings and goings of individuals in public without a warrant.
The Supreme Court has continued to breathe vitality into the Fourth Amendment by adjusting for the reality of technologies that allow unprecedented government access and information collection.
However, last year, the Supreme Court blew a hole in the law enforcement argument that monitoring what a person does in public never requires a warrant. It held in Carpenter that the government’s warrantless seizure of seven or more days of historical cell-site location information violated the Fourth Amendment. The case was heralded by privacy advocates (including CDT) as a significant constraint on the third-party doctrine, a legal principle holding that a person has “no legitimate expectation of privacy” in information voluntarily turned over to third parties. However, this case emphasizes a different facet of Carpenter, that a person “does not surrender all Fourth Amendment protection” by venturing into the public sphere, but instead retains a reasonable expectation of privacy “in the whole of their physical movements.” While previous First Circuit precedent in Bucci disregarded any potential expectation of privacy in “items or places . . . [exposed] to the public,” this court interpreted Carpenter as refuting this principle and approached the case as an issue of first impression.
The court cited three principles that “dictate the resolution” of the defendant’s motion to suppress the images that resulted from the warrantless pole camera surveillance. It drew two from concurring opinions in United States v. Jones, a 2012 case ruling that warrantless use of a GPS tracking device placed on a vehicle for 28 days was unconstitutional, and one from the majority decision in Carpenter. First, Justice Sotomayor’s concurrence in Jones suggested that the government’s “unrestrained power” to collect data that reveals private aspects of identity is susceptible to abuse. Second, the majority decision in Carpenter implied that technology allowing law enforcement officers to access and search large amounts of passively collected data may give police access to a category of information that is “otherwise unknowable.” Third, Justice Alito’s concurrence in Jones argued that while short-term monitoring of a person’s movements does not violate an individual’s expectation of privacy, “longer-term . . . monitoring in investigations of most offenses” does violate that expectation. When examined in conjunction with the “unique” nature of the pole camera in this case, particularly its capacity to be adjusted remotely and its ability to create a digitally searchable log, the court found that use of the camera allowed the government to piece together “intimate details of [the suspects’] life.”
As advances in technology continue to make it easier for law enforcement to monitor members of the public in and around their homes, the Fourth Amendment remains a bedrock of protection and a crucial safeguard against unrestrained surveillance by the government.
Since Carpenter, four federal district court cases (each out of circuit and from the Eastern District of Wisconsin) have declined to extend the Supreme Court’s reasoning to fixed cameras. Each video surveillance case declining to extend Carpenter relied on Justice Roberts’ emphasis in the majority opinion that the Court’s holding did not “call into question conventional surveillance techniques and tools, such as security cameras.” However, the Moore-Bush court differentiated the usage of a pole camera, holding that this camera was installed not to “guard against . . . crime” like a traditional security camera, but rather to investigate the comings and goings of suspects. By using the camera only to keep track of those leaving and entering the property, the government violated the suspects’ objectively reasonable expectation of privacy in “their and their guests’ activities around the front of the house for a continuous eight-month period.”
This opinion may require law enforcement to alter their current investigative practices; however, several questions remain unanswered. The court emphasizes the length of surveillance (eight months), but what about the use of a pole camera for a shorter period of time? While this pole camera was used to observe a driveway and front of a house, what about persistent surveillance of a business? What about a pole camera at a multi-family apartment building? This court also focuses on the technical capabilities of the pole camera used, noting its ability to zoom and pan remotely and its creation of a searchable digital log. What about a camera that lacks any or all of these capabilities? These questions are unresolved and could impact warrantless police use of surveillance technology.
The advancement of technology has removed resource limitations on police that in the past have limited the use of persistent, intrusive surveillance techniques. As devices like surveillance cameras and location trackers become increasingly sophisticated and autonomous, law enforcement officials are no longer forced to prioritize among surveillance efforts due to financial and labor constraints. Long-term, passive monitoring like in this case has dangerous ramifications for privacy interests at the home. If the Fourth Amendment fails to curtail warrantless government video surveillance of the home and property of people in the U.S., the police could use a vast system of surveillance cameras, potentially even facial recognition technology or other advanced analytics, and watch everyone in the country. The Supreme Court has continued to breathe vitality into the Fourth Amendment by adjusting for the reality of technologies that allow unprecedented government access and information collection.
This case is an important confirmation of the idea that “digital is different” and deserves protection under the Fourth Amendment. Recent Supreme Court cases such as Riley, Jones, and Carpenter have acknowledged the invasive nature of technology and extended Fourth Amendment protection to digital data, GPS tracking devices, and historical cell-site location information respectively. This case is the first to extend similar protection to the use of long-term video surveillance by police. As advances in technology continue to make it easier for law enforcement to monitor members of the public in and around their homes, the Fourth Amendment remains a bedrock of protection and a crucial safeguard against unrestrained surveillance by the government.