Monday, July 19, 2021

Telephone Pole Cameras and Long-Term Government Surveillance

by Matthew Tokson

In a decision issued a few days ago, the Seventh Circuit held that the government can warrantlessly use telephone pole cameras to constantly monitor any home for at least one and a half years. While the opinion was both thoughtful and thorough, with many citations to legal scholarship including my own, the holding is aggressively anti-privacy. It would permit the government to monitor any or all residences pervasively and at little cost, and eliminate the zone of privacy that typically surrounds the home. 

Courts are split over pole cameras, and that split may soon deepen after the First Circuit rules en banc in a pending pole camera case. And the pole camera issue seems ripe for Supreme Court review, with relatively clear-cut facts and a form of surveillance that threatens the sanctity of the home. This post previews the potential future showdown over pole cameras by examining the Seventh Circuit’s decision and the broader issue of long-term video surveillance of the home.

The surveillance at issue in United States v. Tuggle was comprehensive and lasted over a year. Law enforcement agents installed three video cameras on poles around Tuggle’s home, two nearby and one a block south. At least one camera was in place for eighteen months. The cameras recorded around the clock, could capture video in the dark, and could zoom, pan, and tilt. Agents frequently monitored the live feed and could later review all of the footage, which was recorded and stored. 

The Seventh Circuit approved this warrantless surveillance with an odd two-step analysis. First, it found that the use of a camera to take a picture of a home for one second would not be a Fourth Amendment search. Second, having concluded that one second was acceptable, it concluded that 1.5 years of video monitoring was also acceptable. 

In doing so, it stated that the Supreme Court has not expressly directed lower courts to consider the amount or duration of surveillance—even as it acknowledged that the Supreme Court had itself considered the amount and duration of surveillance in several cases. But while majorities of the Court have repeatedly endorsed considering the amount and duration of surveillance, “the Supreme Court has not yet required lower courts to apply [these concepts].” This is an unusual way to treat non-dicta Supreme Court reasoning that was central to the holdings of cases like Riley v. California and Carpenter v. United States. Those cases held that the government’s collection of aggregated data in cell phones and cell phone records revealed the privacies of people’s lives and violated the Fourth Amendment, even though the individual data points revealed virtually nothing in isolation. 

Courts generally consider not only the specific holdings of binding Supreme Court cases but their reasoning as well, as courts apply them to new factual contexts. The Seventh Circuit did not. It also mischaracterized the state of law in the lower courts. It stated that “many” courts have expressed disapproval of the "mosaic theory," which refers here to the consideration of the amount or duration of surveillance. And while two courts have critiqued the mosaic theory following Carpenter, over one hundred lower court cases have applied some version of the theory without complaint, relying on the Supreme Court cases doing the same. The consensus in the lower courts in favor of assessing the amount and duration of surveillance is overwhelming.

Perhaps recognizing that it was at odds with the Supreme Court on the mosaic theory issue, the Seventh Circuit then applied the theory arguendo without ruling on its validity. But it concluded that, even considering the long-term nature of the video surveillance, Tuggle’s rights were not violated. The court stated that the 1.5 years of video monitoring of a home did not reveal as comprehensive a picture of a person’s life as the cell phone tracking at issue in Carpenter. Perhaps, but the ceaseless video monitoring of a person’s home, yard, visitors, etc. is very revealing in its own right. Currently, in the Seventh Circuit, government agents can obtain a detailed visual record of every time anyone leaves or returns to their home, everyone who enters the home and exactly when they arrive and leave, and everything that occurs in the backyard or porch or driveway, for at least 1.5 years and likely indefinitely. This is, to say the least, a lot of personal activity, which the government can now create video records of at will. Such monitoring can generate, as one court put it, "a wealth of detail about [our] familial ... professional, religious, and sexual associations."

The warrantless collection of such data is unconstitutional. The Seventh Circuit reached a different conclusion only by essentially limiting Carpenter to its facts, stating that “[u]ntil the Supreme Court or Congress instructs otherwise, we will read Carpenter as limited to the unique features of the historical [cell phone signal data] at issue there.” This is an unusually frontal attack on a recent, binding Supreme Court precedent—to limit a case to its facts is to largely turn it into a nullity. But this approach does not appear to stem from a particular hostility towards Carpenter or even its expansion to video monitoring. The panel concludes its opinion with a lengthy discussion of the perils of expansive government surveillance power, and a plea to the Supreme Court and Congress to expand legal protections to address powerful new surveillance technologies. The court seems to be saying, in so many words, ‘someone else should fix this.’ 

I'm cautiously optimistic that the Supreme Court will indeed fix this, and maybe before too long. The issue may soon be the subject of a well-developed circuit split. And as I argued in a lecture delivered a few years ago, pole camera surveillance captures a large amount of moderately intimate data, and does so at low cost, and so is likely to be considered a Fourth Amendment search under Carpenter and its predecessors. It also compromises the sanctity of the home, permitting the government to pervasively monitor everyone and everything that enters or leaves it, and everything personal or familial that occurs in the curtilage surrounding it.

Ultimately, the Seventh Circuit may have overcomplicated its analysis. The Katz test for Fourth Amendment searches directs courts to consider whether a government action has invaded a reasonable expectation of privacy. It is true that people expect that they’ll sometimes be observed in their front yard by passersby. It is equally true that people do not expect that their homes, yards, families, and visitors will be video monitored by the government unceasingly for several years. In this complex area of law, it doesn’t get much simpler than that. 

3 comments:

Joe said...

The breadth of time plus the effects on the home (the outside of the home, the curtilage, has received protection in cases such as Florida v. Jardines) appears to make this an easier case on the facts.

Carpenter v. U.S. was a 5-4 ruling. This also suggests the line drawing here can be hard. Gorsuch was a dissenter. Breyer joined the dissent in Jardines.

What the Barrett Court (to use Justice Stevens' technique of naming the Court by its latest member) will decide and how it will decide is probably open to some debate. Will the privacy balancing test of sorts suggested by Alito in the car tracking case be a compromise position?

ERinSTL said...

Not-a-lawyer here so take the following with that in mind.

It seems to me that the "reasonable expectation of privacy" standard is a Catch-22. The moment it becomes public knowledge (such as by a court publishing a verdict) that the government is permitted to do something inherently invasive, you no longer have a "reasonable expectation of privacy."

And then it's a race to the bottom, with ever more intrusive surveillance being permitted because there is no "reasonable expectation" that it won't happen.

Joe said...
This comment has been removed by the author.