Yesterday the First Circuit became the first federal court of appeals to hear oral argument on the constitutionality of the warrantless placement of a secret video camera on top of a utility pole after the ACLU’s 2018 victory in the Supreme Court case Carpenter v. United States. Carpenter represents a growing recognition that we have a right to be free from long-term surveillance that catalogs the whole of our physical movements, even in a public place. Yesterday’s oral argument in United States v. Moore-Bush focused on Carpenter’s impact on a person’s expectation of privacy against the placement of a video camera directed at a home for eight months without any judicial oversight.
The Supreme Court has long viewed the home as the core of Fourth Amendment protection. But new technologies are testing the boundaries of our right to privacy in our most private space. A video camera placed on a utility pole across the street from your house, for example, can document and record every time you leave your home, what you do in your front yard or driveway, and all of your visitors. Undetected, a camera like this can capture children playing in the front yard, the precise time of day a family leaves each week to worship, a local Girl Scout ringing the doorbell, and visits from friends and family.
During the investigation at issue, the Federal Bureau of Alcohol, Tobacco, and Firearms placed a camera on a utility pole across the street from an unsuspecting family in Springfield, Massachusetts. For eight months, this camera captured every car and person who visited the home, amassing an enormous database of digitally searchable personal and private information that would otherwise be unknowable to the government.
In June, a Massachusetts federal district court judge ruled in this case that the government’s warrantless pole camera surveillance violated defendants’ reasonable expectation of privacy, suppressing eight months of footage. Judge Young’s opinion expressed concern that the invasive nature of long-term surveillance can chill associational and expressive freedoms and reveal intimate and private details that one might not want exposed to the world. It’s one thing for a police officer to sit outside your house all day and watch who comes and goes. It’s quite another for a police officer or federal agency to install a camera that automatically tracks and catalogues all of this activity. While it takes significant time and police resources to physically monitor a home, approximately $200,000 in wages for one officer over eight months, it takes virtually no resources for police to install the camera and let the technology do all the work. Digital is different, as the Supreme Court recognized when it held in Carpenter that police must get a warrant before tracking our historical cell phone location data. If a person need not abandon their use of a cell phone to avoid leaving behind a trail of historic location data, people surely need not refrain from leaving their home and to avoid exposing their familial, political, professional, religious, and sexual associations. Thankfully, Judge Young, relying on Carpenter, recognized that difference applies to pole cameras, too.
The ACLU filed a friend-of-the-court brief in yesterday’s First circuit case to highlight the privacy invasion and the societal consequences that results from unchecked long-term surveillance. We are particularly concerned that a ruling allowing for eight months of warrantless video surveillance in this case will have negative impacts for low-income and middle-class families, who can’t afford to buy their way to privacy rights. In Massachusetts, this will especially impact families of color. Fourth Amendment protection is not just for those who can afford to erect tall fences, live in a gated community, or buy acres of land on which to live in secluded homes. The national wealth gap between the richest and poorest is larger than it has been in fifty years. In Massachusetts, the wealth gap is explicitly racial. While the median family wealth of white families living in the Boston area in 2015 was $247,500, it was $3,020 for a Puerto Rican family, $8 for a Black family, and $0 for a Dominican family.
Notably, the privacy invasions enabled by a pole camera watching the outside of your home for eight months will continue to become more severe as technology facilitates new methods of tracking. Today, government agents can remotely control pole cameras to pan, tilt, and zoom from the comfort of a law enforcement office thousands of miles away. Some modern cameras are reportedly able to identify a face from 1,000 feet and read a serial number from 100 feet. In Boston’s Logan Airport, a camera was installed nine years ago that could clearly see any object a centimeter-and-a-half wide from roughly 500 feet. Law enforcement is not only able to remotely capture high definition images with today’s technology. Now, agencies can also use automation software to rapidly process months (or even years) worth of video footage, making months’ worth of video easily searchable and digestible. A technology called BriefCam, currently used by the Springfield Massachusetts Police Department, allows agencies to analyze footage and identify anything from the specific color of clothing people are wearing, vehicles, the presence of animals, bicycles, and more, indexing them for later review in a matter of minutes. Law enforcement agencies across the world are likewise experimenting with biometric surveillance technologies such as face tracking, enabling the automatic searching of video data for the presence of specific people.
Gone are the days of old-fashioned visual surveillance. Instead, surveillance technology is eroding not only our privacy rights but the sanctity of the home. The law must keep pace with rapid changes in technology to ensure that people today have the same level of privacy they had when the Fourth Amendment was adopted. Leaving people at the mercy of advancing technology is not a viable option.
This blog post was written by ACLU of Massachusetts Fellow Kristin Mulvey.