Seventh Circuit Says (Reluctantly) That 18 Months Of Pole-Mounted Camera Surveillance Isn't Unconstitutional

from the Fourth-Amendment-rights-slightly-down-on-active-trading dept

The Seventh Circuit Court of Appeals has issued a very well-written and thoughtful decision [PDF] on the Constitutionality of long-term surveillance via pole-mounted cameras.

The tricky thing is the "expectation of privacy." For years, it has often been decided that anything the public can view has no expectation of privacy. A person's front door -- easily observable by passersby and neighbors -- has no expectation of privacy. The location data collected by cellphone towers? No expectation of privacy, since these records have been "seen" by service providers. License plate numbers/vehicle location data, even when gathered millions of times a day around the nation? No expectation of privacy.

In recent years, the tide inadvertently created by the Supreme Court's 1967 Katz decision has started to recede a bit. As always-on surveillance (including the steady stream of useful information generated by smartphones) increases, courts have tried to rein in this unprecedented expansion of surveillance capability by defining "reasonable" as things police officers could actually do without the aid of all this new tech. If it's impossible for a cop to watch the same front door 24/7 for weeks on end (and provide specific recall of comings and goings days or weeks after they occurred), then there's perhaps some expectation of privacy even in public places.

The Supreme Court's Carpenter decision placed some limits on the gathering of records stored by third parties, ruling that these too contain some inherent expectation of privacy.

Into the mix comes the Seventh Circuit's decision, which seems a bit at odds with current case law on the subject of long-term surveillance. But it opens with a pretty accurate projection of the near future: something that will continue to wreak havoc on long-held notions about personal privacy, as well as long-lasting precedent that found nothing wrong with the government gazing steadily at people's yards and doorsteps.

One day, in a not-so-distant future, millions of Americans may well wake up in a smart-home-dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them.

These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples’ everyday routes and deviations therefrom. Upon arrival at their workplaces, schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans’ occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more.

The court says the Katz ruling has created circular reasoning that largely benefits the government, rather than the people whose rights the government is entrusted to protect.

Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread. Stated differently, as society’s uptake of a new technology waxes—cars, GPS devices, cameras, and the Internet come to mind—expectations of privacy in those technologies wane. In today’s interconnected, globalized, and increasingly digital world, for example, Americans largely accept that cell phones will track their locations, their Internet usage will leave digital footprints, and ever-watching fixed cameras will monitor their movements. These evolving expectations thus continually undermine themselves.

As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society’s reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.

At the center of this case is eighteen months of continuous surveillance by three cameras installed near Travis Tuggle's property. Two kept constant watch on Tuggle's home and an adjoining parking area. The third was aimed mainly at a nearby shed owned by Tuggle's co-defendant, Joshua Vaultonburg. The cameras could be controlled remotely and recordings could be accessed at any time at a nearby FBI office, where the recordings were stored. This led to recordings of nearly 100 suspected deliveries of meth, which soon led to a raid of the premises and the arrest of Tuggle.

Tuggle challenged the Constitutionality of this surveillance. He raised two arguments. First, he argued each individual camera was a violation of his privacy rights. The court disagrees, pointing out Tuggle took no steps to prevent these areas from being observed by members of the public or law enforcement, such as erecting fences around the surveilled areas. Given these facts, the court says this argument fails.

In this case, Tuggle knowingly exposed the areas captured by the three cameras. Namely, the outside of his house and his driveway were plainly visible to the public. He therefore did not have an expectation of privacy that society would be willing to accept as reasonable in what happened in front of his home. See Evans, 27 F.3d at 1228. The Fourth Amendment accordingly did not require officers to “shield their eyes” (or their cameras) when passing by Tuggle’s “home on public thoroughfares.” See Ciraolo, 476 U.S. at 213.

And for that, society bears part of the blame.

We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not run afoul of Fourth Amendment protections. Today, cameras are in “general public use.” Kyllo, 533 U.S. at 40. Now more than ever, cameras are ubiquitous, found in the hands and pockets of virtually all Americans, on the doorbells and entrances of homes, and on the walls and ceilings of businesses.

[...]

In sum, the government used a commonplace technology, located where officers were lawfully entitled to be, and captured events observable to any ordinary passerby. The government did not invade an expectation of privacy that society would be prepared to accept as reasonable. Accordingly, the isolated use of pole cameras here did not constitute a Fourth Amendment search.

Tuggle also raised a "mosaic" argument, claiming the combined eighteen months of footage from three cameras intruded on reasonable expectations of privacy. Unfortunately, the Seventh Circuit can't find any Supreme Court precedent to overrule Katz, much less something that would turn a continuous series of Constitutional non-violations (the individual cameras and their approximation of a police officer's eye) into a prolonged Constitutional violation. While there are decisions at lower levels in both state and federal courts, there's no precedent at the appellate level stating that long-term surveillance via camera is a Fourth Amendment violation, with the exception of the Fifth Circuit (surprise surprise!), which held that anything over 30 consecutive days requires a warrant.

Faced with these depressing facts, the Seventh Circuit says it has no choice but to give the government a pass on long-term surveillance. Unlike more comprehensive surveillance (like cell site location data), this monitoring may have allowed the government to draw some conclusions about who came and went from the house, but didn't delve deeply enough into Tuggle's own movement to create a Constitutional violation.

Unlike those technologies, the cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. If anything, far from capturing the “whole of his physical movements,” id. at 2219, or his “public movements,” Jones, 565 U.S. at 415 (Sotomayor, J., concurring), the cameras only highlighted Tuggle’s lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his home.

The final decision from the Appeals Court is reluctant.

Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.

It backstops this reluctant conclusion by saying the courts and the nation's lawmakers will need to do more to protect citizens from increasing surveillance as technology continues to advance and high-powered surveillance tools not only become ubiquitous, but deployed by citizens themselves for their own use.

Barring a transformation in governing law, we expect this chronicle of cameras to repeat itself again and again with the evolution of far more invasive technologies. Today’s pole cameras will be tomorrow’s body cameras, “protracted location tracking using [automatic license plate readers],” drones, facial recognition, Internet-of-Things and smart devices, and so much more that we cannot even begin to envision. New technologies of this sort will not disappear, nor will the complicated Fourth Amendment problems that accompany them. If anything, we should expect technology to continue to grow exponentially. And if current technologies are any indication, that technological growth will predictably have an inverse and inimical relationship with individual privacy from government intrusion, presenting serious concerns for Fourth Amendment protections.

And it's probably time for the Supreme Court to rethink the conclusions of Katz, should the opportunity arrive. What was once impossible is now mundane.

Indeed, almost four decades ago, when considering a respondent’s argument that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision,” the Court reserved judgement because, “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Knotts, 460 U.S. at 283–84. As this case illustrates, round-the-clock surveillance for eighteen months is now unextraordinary.

This denial of Tuggle's motion to suppress is well-written and well-reasoned, even if it comes to a conclusion that does nothing to rein in extensive, prolonged surveillance by the government. While most opinions have a few highlights worth reading, the Seventh Circuit has delivered a comprehensive discussion that addresses the complicated issue without dragging the reader through the case law weeds. While it would have been nice to see the Seventh join the Fifth in prohibiting long-term surveillance without a warrant, at least this decision appears to have been handled with incredible care and raises questions Congress and other courts will need to answer sooner rather than later.

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Filed Under: 4th amendment, 7th circuit, pole-mounted cameras, privacy, surveillance


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  • icon
    Koby (profile), 21 Jul 2021 @ 11:30am

    Multipurpose

    My worry is that if anyone succeeds in creating a right to not be videotaped in public, then government officials and police will, of course, be the next in line to take advantage. Being able to videotape in public has its other benefits.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jul 2021 @ 2:27pm

      Re: Multipurpose

      videotaped

      LOL, who still uses tape?

      Being able to videotape in public has its other benefits.

      So you'd be ok with me setting up a camera facing your front door / back door / garage / storage shed 24/7 if I had permission to place a camera with view of said locations?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jul 2021 @ 10:51pm

        Re: Re: Multipurpose

        I'd prefer my neighbors not point their ring cameras towards my house, but if they want to I have no way to stop them.

        If you live in a densely populated area it's possible all those areas are already covered by your neighbors cameras. And it's also possible they may have given the police permission to use them.

        reply to this | link to this | view in chronology ]

      • icon
        JBDragon (profile), 22 Jul 2021 @ 8:05am

        Re: Re: Multipurpose

        I have security cameras around my house and being on the corner I have a great view of a number of houses. My cameras were helpful to the neighbors a couple of times.

        The simple fact is, the EYE'S can not trespass. Anything you can see from your eyes in public you can record. If I wanted to stand in front of your house and record your house, so long as I was on Public Property, say the sidewalk, I can record away. It's your job to close the blinds if you don't want that person to record into your house. It's one reason I keep the blinds closed all the time in front of my own house. Now if you go onto the property and stick your camera right at the window, well now you're getting into trespassing and Peeping Tom laws.

        This is ho we have Google driving around their cars with a bunch of cameras and recording or taking pictures of everything they see for Street View. They're on a public road and can take all the pictures they want. People also have Dashcams. Tesla's have cameras all over them that are recording.

        Cameras mounted on polls by the Government? Doesn't bother me. Around where I live, they have mics on the polls used to hear gunshots. I guess you can triangulate where the gunshot came from that way.

        If you're going to be a criminal, you need to be smart about it. If you're making drugs, you're going to be a higher priority target. You just have to assume you could be watched at any time, anywhere.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jul 2021 @ 4:03pm

      Re: Multipurpose

      then government officials and police will, of course, be the next in line to take advantage

      Next in line? Shit, they've jumped the queue and are already doing it.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 22 Jul 2021 @ 1:05am

      Re: Multipurpose

      "My worry is that if anyone succeeds in creating a right to not be videotaped in public..."

      Context matters. The Katz decision itself is sound but...the extensions of that decision are not. There's a mile-wide difference between a person walking through the streets with a smartphone set to record...and the same person logically assuming that should mean they get to record every street simultaneously.

      One person individually recording their personal surroundings is kosher. The same person monitoring everyone else's surroundings ought to be considered a completely different situation in law.

      It's not enough to just say "Camera surveillance is OK" It must be targeted.

      • Speeding cameras only kicking in if the ladar clocks you at 10 mph over the limit? Mph. Fine.
      • Surveillance of a specific person or household due to a warrant? Mph. Fine.
      • Recordings of any kind by Dashboard camera or police cam? Mph. Fine.
      • warrant issued for the recording of a specified security recorder/ring doorbell/baby watcher? Mph. Fine.
      • Mass data gathering from every device with a camera in hope of catching something because reasons? Not Fine.

      reply to this | link to this | view in chronology ]

  • identicon
    Chuck Schuldiner, 21 Jul 2021 @ 11:52am

    Living in the Pupil of 1,000 Eyes

    Viewing the blind complexity By which laws were justified To erase simplicity To the left and to the right From behind - they're out of sight Plunging into a new found Age of advanced observeillance A worldwide, foolproof cage

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 21 Jul 2021 @ 1:13pm

    This smacks of the ALPR controversy.

    We don't have an expectation of privacy regarding someone at one point noticing our car in the mall parking lot.

    But at the point that someone's watching the parking lot over time and is tracking all the cars that enter or leave and when, that's getting into data levels that interact with the fourth amendment.

    Once someone is taking license plate pictures at checkpoints for days and tracking cars as they move through the city, that's following people more than they expect to be followed. We Americans have an expectation we're not being stalked, and stalking is a thing done by malicious actors (whether or not they are government agents).

    Is it illegal to track people or their trappings (cars, phones, etc.) to such lengths? Maybe not. But should a government or NGO have that much information on a given person? Probably not. Should such information be admissible in court? Absolutely not. These would qualify as an unreasonable search and would run against the spirit of the Fourth Amendment in the Bill of Rights.

    The same thing can be said of monitoring someone's front door for six months. A police doing a drive-by look at the front door is not invasive, but the pattern derived from collecting data over time regarding who leaves and returns is, again, an unreasonable search, and should not be admissible in court.

    reply to this | link to this | view in chronology ]

    • icon
      BurningWoodchipper (profile), 22 Jul 2021 @ 7:42am

      Re: This smacks of the ALPR controversy.

      But at the point that someone's watching the parking lot over time and is tracking all the cars that enter or leave and when, that's getting into data levels that interact with the fourth amendment.

      Undesirables have always been tracked. Back in the day, cops would go to biker events and walk down the row of parked bikes, taking photos of every license plate to track association and attendance.

      Then we learned to put a helmet, bandana, or sleeping bag over the plate, as they weren't allowed to move stuff to make the plates "in plain view."

      It's an arms race. Always has been, always will be.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 22 Jul 2021 @ 12:59pm

        "It's an arms race. Always has been, always will be."

        That's the problem. There shouldn't be undesirables, according to the state or to state agents, just like there shouldn't be outlaws.

        Excluding a people from the state for any reason justifies terrorism and war without quarter.

        reply to this | link to this | view in chronology ]

  • identicon
    jim, 21 Jul 2021 @ 1:16pm

    I am not too worried about this hi-tech dystopian future ...

    because ....

    we have run face first into the limits to growth and the climate is now destabilized and we are firmly on the path to Hot House Earth.

    LOL the other dystopian future will prevent this high tech one.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Jul 2021 @ 1:42pm

    This is indeed extreme and should well be considered by courts which can set precedent.

    I haven't read the facts of the case, but i could see such surveillance being reasonable only if the initial suveillance clearly reveals illegal activity - not just "maybe it is because of known reputations of persons involved, upon 'expertise and belief'". Then it's more like wiretapping and an undercover officer embedded into some gang or organized racket. (At least when they do that right.) The critical bit being that they reapply for warrant extensions at reasonable intervals (not hard) with the informatiin they gathered, so as to uncover other real criminals. As in, not extending the surveillance period while the guy sells meth just to increase the number of charge counts.

    reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 21 Jul 2021 @ 1:49pm

    I think the court missed an important point here. There was really no way to avoid the surveillance. There is a mention of fencing around the yard, but that would not have prevented pole mounted cameras from seeing into his property.

    In many cases, steps taken by the surveilled individual to avoid that surveillance are an important factor. I believe that the lack of an opportunity to take such steps in this case should have been a factor weighed against allowing the surveillance.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 21 Jul 2021 @ 3:00pm

    So recording police for 18 seconds can result in you being arrested (or worse) but the government is free to record you for 18 months?

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 21 Jul 2021 @ 3:12pm

    I wonder what the FBI would have to say if a person living across from one of their agents, or even the head of the FBI, recorded that agent's family's movements for a year or more.

    "Hey James, is your daughter OK? I notice that she didn't go to school today, and she hasn't had any friends over in several days."

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 21 Jul 2021 @ 4:47pm

      Re:

      I wonder what the FBI would have to say if a person living across from one of their agents, or even the head of the FBI, recorded that agent's family's movements for a year or more.

      Too easy...their response would be you're under arrest for stalking, interference with law enforcement, threatening a law enforcement officer, and I'm sure they would try to throw in something over the top like you must be a terrorist doing reconnaissance for your terroristic plot.

      reply to this | link to this | view in chronology ]


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