The Massachusetts Supreme Judicial Court (SJC) has ruled that warrantless, persistent surveillance outside of a home by means of a pole camera violates the Massachusetts State Constitution. In Commonwealth v. Mora, the court held that a warrant is required, the position CDT, EFF, and the ACLU of Massachusetts took in the amicus brief we filed in the case. In a striking bow to equal rights, the court further ruled that the warrant requirement applies regardless of whether the occupants had erected fences or other barriers to protect their privacy because such a requirement would apportion privacy rights by income, race, and ethnicity.
Massachusetts law enforcement officials warrantlessly and persistently surveilled the homes of defendants Nelson Mora and Ricky Suarez for 169 and 62 days, respectively. Pole cameras installed in front of their homes captured images of all persons coming and going, as well as the license plates of vehicles. The police could remotely zoom and pan the cameras in real time, and the footage was saved in a searchable format permitting the officers to review it at their own convenience. The defendants argued that this warrantless surveillance violated their right to privacy under the Fourth Amendment of the U.S. Constitution and under Article 14 of the Massachusetts Declaration of Rights (the right to privacy in the state constitution). 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.
CDT joined the ACLU, ACLU of Massachusetts, and EFF in filing an amicus brief in Mora arguing that a warrant should be required in advance of such intrusive, persistent, and frictionless surveillance. We pointed to a string of recent Supreme Court cases seeking to preserve the “degree of privacy against government that existed when the Fourth Amendment” was adopted, and guard against “too permeating police surveillance” (Carpenter v. United States, 2018). The Massachusetts Supreme Judicial Court (the highest state court in Massachusetts) agreed and held that at least two months of persistent surveillance of the home demands a warrant supported by probable cause observing that “[w]ithout the need to obtain a warrant, investigators could use pole cameras to target any home, at any time, for any reason. In such a society, the traditional security of the home would be of little worth, and the associational and expressive freedoms it protects would be in peril.” The court based its decision on Article 14 of the Massachusetts constitution and did not determine if the surveillance also violated the Fourth Amendment to the U.S. Constitution. Highlights of the opinion are discussed below.
Equal Protection of One’s Right to Retreat and Repose In Their Home
Led by our friends at the ACLU of Massachusetts, our amicus brief argued that the homes of individuals who do not take extraordinary measures to shield their homes from the outside world, including the prying eyes of the government, should be protected. Fourth Amendment case law suggests that, in the absence of efforts to obscure, an individual cannot express a cognizable subjective expectation of privacy in that which they make available to the public. However, this reasoning would seemingly afford those with the resources to live in remote areas or otherwise design their home to block out intruding eyes greater enjoyment of privacy rights than those without access to such resources. We are heartened that the SJC picked up on this concern and agreed that constitutional protections must be equally enjoyed:
“… requiring defendants to erect physical barriers around their residences before invoking the protections of the Fourth Amendment and art. 14 would make those protections too dependent on the defendants’ resources. In Commonwealth v. Leslie, 477 Mass. 48, 54 (2017), we noted that affording different levels of protection to different kinds of residences “is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity” (quotation and citation omitted). Similarly, the capacity to build privacy fences and other similar structures likely would correlate closely with land ownership and wealth. A resource-dependent approach thus would be contrary to the history and spirit of art. 14.”
Additionally, the ruling is another reminder of the significance of the home as a bedrock of state and constitutional rights. Reflecting on the invasive nature of the surveillance at issue, the SJC noted that, “[i]f the home is a “castle,” a home that is subject to continuous, targeted surveillance is a castle under siege. Although its walls may never be breached, its inhabitants certainly could not call themselves secure.”
Digital is Different
The Commonwealth argued that the information gleaned about defendants in this case could have been acquired by situating law enforcement officers in front of their homes. No warrant is required for a police officer in a car parked nearby to watch the comings and goings of an individual, and neither should one be required if the police officer is replaced by a piece of technology, the Commonwealth reasoned. The SJC rejected the assertion that the surveillance in this case and the information gleaned about defendants could have been accomplished by the officers acting alone, quoting Justice Alito’s concurrence in United States v. Jones: “[i]n a literal sense, replicating pole camera surveillance ‘would have required either a very large [pole], a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.’” The SJC observed that physical police surveillance likely would have been noticed, that humans suffer from limitations pole cameras do not, such as needing to eat and rest, and that police surveillance could not have created the searchable record made available via pole camera. This reasoning, that resource limitations serve an important check on police surveillance, mirror those raised in United States v. Jones and Carpenter. We hope it will be compelling to other courts that review pole cameras and novel technologies that make policing far more efficient, and therefore potentially more pervasive.
This is an important victory for Massachusetts residents and a needed check on executive discretion. Notably, federal law enforcement operating this technology in Massachusetts face no such requirement — at least, not yet. We hope the First Circuit Court of Appeals takes up United States v. Moore-Bush, a federal challenge to warrantless persistent pole camera surveillance of the home in which CDT filed an amicus brief urging the Court to impose a warrant requirement, for en banc review. An initial panel of the Court refused to impose a warrant requirement for such activity. A Fourth Amendment challenge to pole camera surveillance is also currently pending before the Colorado Supreme Court. In that case, People v. Tafoya, a defendant’s home and backyard were subjected to three months of persistent surveillance. The Colorado Court of Appeals held that the police violated the defendant’s Fourth Amendment rights and needed to secure a warrant prior to such conduct, and the government appealed.
Technological innovation is removing the friction from government surveillance. It is becoming easier to conduct for lengthy periods of time, more efficient, and more invasive as new data analysis techniques are developed. Judicial checks are sorely needed to prevent law enforcement from being able to surveil everyone, invasively and all the time. We hope Mora is a harbinger of what is to come.