Technology has made surveillance easy and cheap — but when does the government’s high-tech snooping cross the line?
BOSTON (CN) — Can police install a secret video camera outside someone’s home and record everything that happens there for eight months? The First Circuit seemed dubious during oral argument Tuesday, but the judges also struggled to figure out where to draw the line as to when police need a warrant for their high-tech surveillance.
“Wouldn’t many of us feel insecure if we suddenly found out a camera was recording everything that happened in the curtilage of our house?” asked U.S. Circuit Judge William Kayatta.
“That would make me feel insecure,” the Obama appointee said. “Why wouldn’t most people feel that way?”
U.S. Circuit Judge O. Rogeriee Thompson, a fellow Obama appointee, complained that the government was arguing that its right to spy on people “should be limitless.”
“Are we just going to put these cameras in front of everybody’s house and monitor them and see if anybody’s up to anything?” she asked.
But in a contentious argument that was scheduled for 40 minutes and lasted two hours, U.S. Circuit Judge Sandra Lynch insisted over and over again that the fact that a police officer could walk by a house and see what was happening outside meant that the government had a right to use a hidden camera to see what was happening outside all day long for months on end.
“What reasonable expectation of privacy do people have in criminal activity in their driveway?” the Clinton appointee asked, repeatedly suggesting that the snooping in this case was justified by the fact that it appeared to have turned up evidence of wrongdoing.
The case involved Daphne Moore, a former assistant clerk-magistrate with the Springfield, Massachusetts, court system, as well as her daughter and son-in-law. Police charged members of the family with trafficking drugs from Springfield to Vermont where they would exchange them for cash and firearms.
Much of the evidence came from a secret video camera that police mounted on a utility pole outside Moore’s home, where her daughter and son-in-law were frequent guests. The camera recorded everything that happened outside the home and produced a searchable digitized record.
Police officers were able to tilt and pan the camera, as well as zoom in to read license plates, although they couldn’t see inside the home or record audio.
The First Circuit approved a similar camera back in 2009. But the Moores argued that the 2009 case was no longer valid after a 2018 Supreme Court decision that said the Fourth Amendment could be violated by a cellphone-location-tracking device.
A federal judge sided with the Moores in June 2019, ruling that the camera evidence couldn’t be used at trial because the police didn’t have a warrant. A year later, a three-judge panel of the First Circuit disagreed and sided with the government. But the court agreed to rehear the case en banc at the urging of U.S. Circuit Judge David Barron.
Barron, an Obama appointee, said it would be perfectly fine for a police officer to walk by the Moores’ home and take a photo, but the continual surveillance for months on end created a higher level of concern. He compared it to the difference between a runner on second base occasionally stealing a catcher’s signals, and the home team installing a secret camera and videotaping the opposing team’s catcher at all times.
The American Civil Liberties Union and a large number of press and other civil liberties organizations waded into the case on the side of the Moores.
Police could abuse the technology, the ACLU warned, suggesting that if officers didn’t need a warrant for a utility pole camera, they could “watch ex-girlfriends, or ascertain who is attending Black Lives Matter protests, or catalog who is leaving home during the pandemic, or track undocumented immigrants.”
The group said this would disproportionately impact “communities of color and densely populated communities where people are more likely to be surveilled by law enforcement and less able to erect physical barriers to that surveillance.”
Physical barriers were an issue at the argument. “Do you have to put up trees?” asked Thompson.
U.S. Attorney Randall Kromm said people don’t have a reasonable expectation of privacy in their front yard unless they “do something to indicate an intent to keep things private.”
“What about a no-trespassing sign?” asked Lynch.
Kromm said that wasn’t enough because it wouldn’t stop people on the street from looking into the yard.
Barron asked how high the camera was on the utility pole, and Kromm guessed 20 feet. “I’m wondering how high a fence would have to be,” Barron deadpanned.
Nathan Wessler, a deputy director of the ACLU Speech, Privacy, and Technology Project, said it didn’t matter because the local Springfield zoning rules wouldn’t allow a fence of any height.
Wessler also said the argument that the camera showed only what the public could ordinarily see was wrong because “members of the public don’t typically spend time at the top of a utility pole.”
While Lynch was strongly in support of unlimited snooping, Barron, Thompson and Kayatta all had reservations.
“The Fourth Amendment is designed to make us feel secure in our persons. As new ways of searching and technologies develop, shouldn’t we not lose the same level of protection that we had before?” Kayatta asked.
Kromm responded that “a helicopter seeing our backyard, or cops going through our trash, or subpoenas of phone records might also make you insecure, but those are OK” under Supreme Court rulings.
“But if a drone sat over your house for eight months, wouldn’t the Supreme Court treat that differently?” Thompson asked.
Nevertheless, the judges seemed hesitant to require a full-blown warrant. Both Thompson and Lynch asked defense lawyer Judith Mizner at what point the camera became a search, and what exactly distinguished acceptable observation from illegal spying.
“It becomes a search when it goes beyond what a reasonably nosy neighbor would be expected to see,” said Mizner, of the Federal Public Defender Office.
Wessler added that pole cameras are different from nosy neighbors because “a pole camera doesn’t have to take a break to sleep, go to the bathroom or answer the phone.”
But the judges still seemed to struggle with where to draw the line. “What if we said you have to have reasonable suspicion” rather than probable cause for a warrant, Kayatta asked, and there was some indication that the judges might focus on that as a compromise.
The fifth judge on the panel, U.S. Circuit Chief Judge Jeffrey Howard, repeatedly asked what the difference is between the pole camera and common CCTV and security cameras that the police can sometimes access if they think they might have picked up illegal activity.
Wessler answered that, “if police went to a neighbor and asked for a recording, that would be different — most security cameras don’t save eight months of data.”
“So it depends on whether the person is being targeted,” said Howard, a George W. Bush appointee. “This is good,” he added, suggesting that he had found a way to limit pole cameras without hampering the ability of police to use CCTV footage.
Lynch then launched into a lengthy speech about the death of Sarah Everard in England, and the fact that many women there are protesting for more CCTV cameras, in part to protect themselves against police misbehavior toward women.
Mizner countered that “the Fourth Amendment in this country is designed to provide protection against the government,” and that “the cameras in this case were not designed to protect against government misconduct.”
Thompson seemed to sense that the divided panel was unlikely to come up with a sweeping pronouncement. “What is the narrowest holding we could make?” she asked Mizner.
Mizner suggested sticking closely to the facts. She proposed: “A camera that records everything in the front of your home, 24 hours a day, seven days a week, for eight months, is a search.”