Update From LitLand: Warrantless Video Surveillance After Carpenter
LitLand is a monthly feature that reviews developments in litigation as they relate to privacy matters and highlight any past, current, and future cases about which you should know.
Where and in what circumstances one has a reasonable expectation of privacy— particularly when in public— remains a topic of debate in the courts following the U.S. Supreme Court's 2018 decision in Carpenter v. United States. There, the Court held that the government's acquisition of cell site location information (CSLI) from a third-party mobile service provider constituted a search under the Fourth Amendment requiring a warrant.
Since Carpenter, courts have considered how the Court's holding would apply to other scenarios involving the collection of information about a person's movements and location. Recently, in United States v. Moore-Bush, a Massachusetts district court found that the government's use of a video camera mounted on a utility pole to conduct outdoor surveillance constituted a search under the Fourth Amendment and therefore required a warrant. On appeal, however, the 1st Circuit ruled that the district court misapplied Carpenter and erred in suppressing video footage for failure to obtain a warrant.
District Court Suppression Order
In finding that the government's collection of video footage constituted a search under the Fourth Amendment, the district court focused its analysis on the "(1) continuous video recording for approximately eight months; (2) focus on the driveway and front of house; (3) ability to zoom in so close that [the pole camera] can read license plate numbers; and 4) creation of a digitally searchable log" in concluding that use of the video camera constituted a search. The district court concluded that Moore-Bush had a subjective expectation of privacy, inferred from her choice to reside in a quiet suburban neighborhood, and "persons who live in quiet suburban neighborhoods have greater privacy interests than persons who live in other neighborhoods."
1st Circuit Reversal
The 1st Circuit found that its 2009 United States v. Bucci decision (based on the U.S. Supreme Court's 1967 United States v. Katz decision) was controlling. Bucci held that the government's use of a pole camera to record the front of a suspect's house for eight months was not a search under the Fourth Amendment because the defendant in that case did not have an expectation of privacy in front of his home. Under Bucci, "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."
The 1st Circuit in Moore-Bush found that Carpenter did not alter Bucci, which it found "factually indistinguishable" from the facts in the case before the court. The 1st Circuit relied heavily on the express narrow scope of the U.S. Supreme Court's Carpenter decision, which held the government's acquisition of cell-site location information (CSLI) (time-stamped records revealing which cell towers the suspect's cellular phone was connected to), even over a period as short as seven days, was a search requiring a warrant. The 1st Circuit noted that the U.S. Supreme Court expressly stated that Carpenter was a "narrow" decision and did not "call into question conventional surveillance techniques and tools, such as security cameras."
The Court distinguished the degree of invasion between the two methods of surveillance, noting that a pole camera is fixed and does not track the whole of a person's movements over time, whereas CSLI collects data that is "otherwise unknowable" and acts "as if it had attached an ankle monitor to the phone's user."
The 1st Circuit ultimately held that because Carpenter did not affect the analysis in Bucci, Katz remains good law, and there was no basis for revisiting the "law of the circuit" allowing warrantless use of video camera surveillance, under Carpenter or any other reasoning.
Future Implications
While Carpenter is clearly an important case, it did not expand the scope of Fourth Amendment protections generally, but applied already established Fourth Amendment protections to a novel and narrow set of facts created by technological advancements. Bucci and Moore-Bush did not minimize individual privacy protections around one's home but rather affirmed long-established methods of surveillance as viable sources for government access to information without the need for a warrant.
So what is the future of CSLI and pole camera surveillance during the current global pandemic where homes are forced to become both public and private spaces? Does the reasonable expectation of privacy shift when the needs of society require CSLI data to be gathered for virus tracking purposes for an entire nation? Is any reasonable expectation overcome by the need to track people moving in and out of known infected areas?
The key distinction between Carpenter on one hand and Bucci and Moore-Bush on the other seems to be technologically enhanced tracking of a single individual's movements over time (which requires a warrant), versus even very persistent, technologically enhanced surveillance of a single location (which does not). This has some interesting implications for the use of surveillance in response to COVID-19. Consistent with Katz ("the Fourth Amendment protects people, not places"), monitoring specific places to track who comes and goes seems less problematic than monitoring specific people wherever they move. Tracking specific people – even if for an important purpose, such as contact tracing – would likely raise problems that monitoring potentially high-risk locations might not.
The U.S. Supreme Court has yet to address the issue of "reasonable" privacy expectations during a global pandemic but has made clear that as technology advances, narrow expansions of Fourth Amendment protections may be warranted, but when traditional methods of surveillance are used, precedent determines what is "reasonable." As the Court further noted in Carpenter, however, "when considering new innovations … the Court must tread carefully … to ensure that we do not 'embarrass the future.'" (Note: An Appellate Judge recently granted Moore-Bush's motion to extend time to file a petition for rehearing.)