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

Privacy

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.

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