Last week, the Massachusetts Supreme Judicial Court (SJC) ruled in Commonwealth v. Mora that the Massachusetts state constitution prohibits police from conducting continuous, long-term pole camera surveillance targeted at a private home without a warrant.
The Massachusetts highest court’s decision builds upon its thoughtful interpretation of 18th, 19th and 20th century law as applied to 21st century technology, a growing and impressive body of case law. Over the past ten years, the Court has protected Massachusetts residents’ reasonable expectations of privacy from warrantless long-term GPS tracking, historical cell phone location tracking, and real-time cell phone location tracking, and provided the groundwork for a successful challenge to ubiquitous, warrantless license plate tracking. In this case, the Court addressed the privacy implications of pole cameras trained on homes, with the ability to remotely pan, tilt and zoom.
Months of video surveillance targeting a private home? You’re gonna need a warrant for that.
In Mora, police placed a surreptitious camera atop a utility pole and used it to watch the homes of two people for several months. Relying on the mosaic theory, the Court held that long-term pole camera surveillance of the home allows the government to aggregate many different pieces of information that, when taken as a whole, expose otherwise unknowable details of a person’s life. The camera’s location was static. But the Court made clear that its earlier cases did not turn on the collection of location for location’s sake. Instead, the SJC emphasized,
[r]ather than focus solely on whether a surveillance technology tracks a person’s public movements, our analysis under art. 14 turns on whether the surveillance was so targeted and extensive that the data it generated, in the aggregate, exposed otherwise unknowable details of a person’s life.
In other words, what matters from the constitutional perspective is neither the specific technology that is used, nor the specific information collected, but rather whether technology allows the government to collect a sufficient amount of data over a sufficient period of time to reveal intimate details about an individual that would otherwise be difficult, if not impossible, to obtain via analogue means.
In this case, as the ACLU of Massachusetts argued in our friend of the court brief, the long-term video surveillance likely captured the most intimate parts of these families’ lives, including their religious practices, political engagement, health events, romantic interests, patterns of daily life, personal and business associations, and more. The Supreme Judicial Court concluded, “[t]his combination of duration and aggregation here is what implicates a person’s reasonable expectation of privacy.” After all, as the Court explained:
even when pole cameras do not see into the home itself, by tracking who comes and goes over long periods of time, investigators are able to infer who is in the home, with whom the residents of the home meet, when, and for how long. If 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.
Going forward, the Court has made clear that whether a person in Massachusetts has a reasonable expectation of privacy from the government’s use of digital surveillance technology is not strictly a question of whether their movements are tracked. Instead, the constitutional test turns on (1) the duration of the surveillance and (2) the government’s ability to aggregate otherwise unknowable details through the particular surveillance at issue.
Privacy for all, not just the rich
A key argument advanced in the ACLU of Massachusetts amicus brief was that the Mora case also raised significant economic and racial justice issues pertaining to who gets privacy and who does not. Thankfully, the SJC agreed. In its ruling, the Court affirmed that absent a warrant requirement, people who seek privacy in the area around their homes would be forced to erect physical barriers to protect themselves from the prying eyes of the government. The Court held that allowing long-term video surveillance of private homes without warrant protections would have a devastating disparate impact on those who lack the money to build privacy walls around their homes, and for those who live in denser urban areas where such walls are impractical. Affirming that privacy can’t just be a right for the rich or people with large plots of land, the Court held that “affording different levels of protection to different kinds of residence is troubling because it would apportion [constitutional] protections on grounds that correlate with income, race, and ethnicity.”
Last week’s pole camera ruling at the SJC is particularly important for Massachusetts residents in light of a contradictory ruling under the Fourth Amendment last month, from a panel of judges at the First Circuit Court of Appeals in United States v. Moore-Bush. In his concurring opinion, Judge Baron explained that he joined the majority’s conclusion based on his determination that a prior First Circuit decision, United States v. Bucci, bound the panel. But he went on to emphasize, “in my view, the proper course for our Court is to use this case to give Bucci fresh consideration en banc, so that we may determine for ourselves whether the result that it requires is one that the Supreme Court’s decision, from Katz to Carpenter, prohibit.” The petitioners in that case have asked the court to rehear the pole camera issue before the entire First Circuit, and the ACLU of Massachusetts submitted an amicus brief in support of these en banc petitions. The Court’s decision whether to take the case on en banc is still pending.
This guest post was authored by Kristin M. Mulvey, Legal Fellow, ACLU of Massachusetts