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Tue, 11 Jun 2019

Federal Court: Eight Months Of Utility Pole Camera Surveillance Is A Fourth Amendment Violation
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The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns.
The court says the test for applying the Fourth Amendment to government surveillance efforts comes down to a "reasonable" expectation of privacy. Here, the court finds the defendants' privacy expectations are both subjectively and objectively reasonable.
The Court ALLOWS Moore-Bush and Moore's motion to suppress because they have exhibited an actual, subjective expectation of privacy that society recognizes as objectively reasonable. See Morel, 922 F.3d at 8. First, the Court infers from their choice of neighborhood that they subjectively expected that their and their houseguests' comings and goings over the course of eight months would not be surreptitiously surveilled. See Moore Mot. 7. Second, the Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner. See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).
The government, of course, disagreed. It argued the defendants had no privacy interest in the front of their house, considering it was viewable by anyone passing by it. The court says if that were the extent of the privacy interest asserted by the defendants, the government would be correct.
Yet that is not the narrower privacy interest that Moore-Bush and Moore assert here. Instead, Moore-Bush and Moore claim that they expected privacy in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house. The Court infers from Moore-Bush and Moore's choice of neighborhood and home within it that they did not subjectively expect to be surreptitiously surveilled with meticulous precision each and every time they or a visitor came or went from their home.
The government may have prevailed if it weren't for the Carpenter decision, though. The issue isn't a camera pointed at a publicly-viewable area. The problem is what that camera collected over the course of eight months.
In Bucci, the First Circuit reasoned that the "legal principle" that "[a]n individual does not have an expectation of privacy in items or places he exposes to the public" disposed of the matter… If that principle remains an accurate depiction of the law, Moore and Moore-Bush lack an objectively reasonable expectation of privacy in the activities just outside their home, regardless of the camera's unique capabilities.The Court reads Carpenter, however, to cabin -- if not repudiate -- that principle. There, the Supreme Court stated that: "A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" [...] What's more, the Supreme Court recognized that long-term tracking of a person's movements "provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.'"
The government argued the Carpenter decision was "narrow," applying only to cell-site location info. The court disagrees, saying the reasoning behind the Supreme Court's decision -- that people do have some reasonable expectations of privacy in public areas -- is the driving force here, not the method of surveillance.Additionally, long-term surveillance tends to do damage to other rights as well. Tracking a person's movements over weeks and months allows the government to surveil a wealth of activities protected by the First Amendment. In addition, it allows the government to observe dozens of activities it has no business observing.
What's more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.
The court wraps up its decision by pointing out it is not declaring all surveillance camera use a search under the Fourth Amendment. Instead, it's saying that this set of circumstances makes it a search that interferes with the defendants' reasonable expectation of privacy. The camera setup used here could focus on multiple areas, zoom in close enough to read license plate numbers, and -- perhaps most importantly -- create a searchable set of recordings the government could browse at its leisure and use to reconstruct the lives of the home's occupants over the court of several months. That exceeds what the court -- and the defendants -- find reasonable. Under Carpenter's standard, this type of surveillance can no longer be executed without a warrant.

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