SCOTUS declines to hear challenge to warrantless pole camera surveillance
aclu.org
aclu.org
There are very few details in the article. Now I'm curious how they found out about the camera, if charges were filed, etc.
If an ordinary citizen cannot do it, I don't think police should ordinarily be permitted to do it; there should be a review. Given this lasted for months, there clearly wasn't immenent danger.
People have a right to be secure in their houses under the 4th amendment. People have a reasonable expectation that others will not install cameras on property they do not own for the purpose of surveiling a house the other does not own. Secretly installing a camera seems like a violation of that reasonable expectation, thus making it a search.
Who owns the utility?
In Canada, for example, it's common for the utility companies responsible for electricity transmission and/or distribution to be owned by provincial or municipal governments.
At least in Canada, even when a "private" company is involved, there can be significant government ownership. Hydro One in Ontario is publicly-traded, yet the Ontario Government holds nearly a majority of the shares, for example.
The government also owns schools, libraries, and hospitals, yet (I would hope) we don't want that to mean the police can get your school transcripts, library or medical records, or compel hospital staff to restrain you until the police arrive, without a warrant.
In sum, the government owns far too much to be allowed to use all they own for whatever purpose they please.
Conviction for what?
Drug possession. Drugs they found in your car after a "random" stop. I Whether you never use drugs or not doesn't matter, they will find something.
If you think cops have to play it fair if they wanna punish you, you are a bit naive.
Do you think a police officer would really risk his livelihood to attempt this sort of thing?
Think about all of the illegal steps an officer would need to take - from procuring the drugs to falsifying the documents (narrative, etc.) - just to "punish" you.
And what exactly is the payoff?
https://www.aclu.org/news/privacy-technology/baltimore-polic...
I wouldn't do most of the stuff cops in the US are doing, and without knowing you the slightest I still have some confidence that you wouldn't either.
Yet they do. Not all of them, but some. And that is enough.
If you have power lines with communication utility services running lower on the poles, those communication lines are paying rent to string their lines on those poles. So they could come at you with failure to pay rent, breach of contract (can there be a breach if you didn't sign), some sort of something along those lines would allow for at least a civil suit from the pole's owner.
Doesn't this still fall foul of existing surveillance protections, though? The police can't circumvent legislation by just paying a PI to stalk you instead. Doesn't this fall into the bucket of turning the seller into an agent of the state?
This could be fixed very simply by a law. The chances of such a law being passed are sadly extremely low.
Actually, they are starting to crack down on some of that with the recent SCOTUS case on cell location tracking. I forget the case name, but that was within the last 4 or so years.
Why would they need to? Stalking you doesn't require a warrant. Breaking into your house, for example, would require a warrant, but a PI can't do that any more legally than the police can.
If your neighbor's Ring camera is pointed at your front door or living room, the police can legally acquire the footage without a warrant.
Pedants will insist they are the 'same' somehow. But socially we know that's not true. It matters to us that we feel some sense of privacy most of the time. It's all about degree.
Think about it as if it was a person -- while it might be legal for me to stand on the sidewalk and look at your home, I sure would get a different reaction if I stood there for days with binoculars looking through your windows 24/7.
So yes, viewing a home from a public space is legal, the question is not only what criteria would make it illegal, but what criteria should?
When you walk down the sidewalk, and you see the home for the 30 seconds it takes you to move past where it is in view, you are "viewing" it. When you live across the street, and every once in awhile you pull back the blinds to see if the mail has come, and you incidentally see the house, that's public viewing.
When the government installs surveillance cameras aimed at the house 24/7 for the rest of eternity, they have access to details that no one could possibly know if they were "viewing a home from public space". 35 years later, they'll be able to search through the footage to see who left and at what hours of the evening for all of October 2024. We can't even know right now what they might be able to infer from the footage.
Even if an unmarked car sat out in front of the home, watching it for a week straight... that surveillance is ephemeral. No one will be able to ask the surveiller what happened 35 years later, he won't remember much. He was there for a 12 hour shift for 6 days straight. Not up for 5 month's non-stop. Not digital and losing not even a single bit of detail.
The two things aren't equivalent, not even slightly. Ephemeral and limited, versus forever and all-encompassing. That's the criteria.
In a democracy, the will of the people. And in a dictatorship, the will of the leader. That's it, that's all.
People should take matters in their own hands and start taking down those cameras.
> Kyllo v. United States, 533 U.S. 27 (2001), was a decision by the Supreme Court of the United States in which the court ruled that the use of thermal imaging devices to monitor heat radiation in or around a person's home, even if conducted from a public vantage point, is unconstitutional without a search warrant.
This is called a reasonable expectation of privacy. You don't have one in the visible spectrum for things visible outside of your property to arbitrary passers by.
Super-duper sensing devices can potentially violate a reasonable expectation of privacy.
The decision in Kyllo was pretty clearly explained by the court.
"there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search— at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the 35 *35 information obtained by the thermal imager in this case was the product of a search."
I guess it should depend on what information is collected and how long the surveillance is. A camera picks up mostly visible light and if it's pointed at a house for months on end that's a major problem. Police can use radio waves to see through walls and track your actions inside your home from the outside, or fly overhead and see what you're doing using thermal cameras and that's much much more invasive but can take place in minutes.
There is almost certainly something stopping your neighbor from mounting a camera permanently on a utility pole.
Also, just because an individual can do it does not automatically entitle the government to do it. There are many things individuals can do that the government is specifically prohibited from doing.
From the linked document: I requested information regarding Flock security cameras from the company and spoke with their local sales rep, who provided the proposal in the packet for Board discussion. My understanding is that the library would essentially be subscribing to the data, and Flock would own and install the equipment, which would capture make, model, color and license plate data on all vehicles entering or exiting the library parking lots. This data would then be shared in real time with any law enforcement connected to the Flock network.
Many libraries now use, and heavily promote, third party ebook services that are also collecting the reading habits of card holders where it can be sold to the government or to anyone else willing to pay for it.
Otherwise yes some cameras are already there and may be pointing at your home, but that doesn’t mean it is OK for the police to stick a poll cam up and spy on you.
A police poll cam could pan and zoom as needed to get the questionable probable cause. So it is way more dangerous than a ring bell next door (ring bells don’t pick up much really)
Others in the past have noted that the police would be permitted to stake out the address in person, without warrant or much oversight. But the number of cops is finite, there are natural limits to how often and how long they can do that. There is no limit to how many cameras that police departments might collectively buy. There are plausible scenarios where multiple cameras are aimed at every address in the country. All of this can be stored indefinitely.
It amounts to warrantless search.
In future we'll have to come up with some social rules about ubiquitous surveillance. Because it will become the norm.
There exist no possible sets of rules to mitigate the scenario in your prediction. Find a way to avert that future.
Sure we can still have privacy. I hear what goes on behind a bathroom door, but I pretend I don't. It would be the height of boorishness to say anything. Similarly, to admit you know anything about someone you learned from 'remote viewing' could be appalling manners etc.
People are very adaptable. Come from a line of people who lived in tiny villages and knew everybody's business. And yet here we are.
They did specify at a high level several cases and that at least in some charges were filed in the article, at least I read it that way:
“a result, the government targeted the home of a community pillar — a lawyer, respected judicial clerk, devoted church member, and a grandmother raising her grandkids — to cherry-pick images from months of unceasing surveillance in an effort to support unwarranted criminal charges against an innocent person.”
Perhaps at the moment, but there's no moral reason why the law cannot constraint and regulate this space, especially if it harms the common good.
The legal problem is: do you now arrest a parent taking a picture of their child on a public street and your house happens to be in the frame? Of course not, but how do you legally differentiate the two?
>Remember it's not (yet) an algorithm that has to be precisely specified.
Yes, but the more vague the more prone to state abuse and the more likely to be struck down.
Freedoms carry burdens, but the freedoms outweighs the burdens in nearly all cases.
I wasn't trying to be combative, I just thought you had an idea that I hadn't thought of that would satisfy the privacy concerns with the freedom to photograph in public concerns.
>By evaluating the context, subpoenaing records and conversations, questioning under oath, looking at the effects and history of actions of the individuals involved.
So a lady gets arrested for photographing her child with your house in the background, she would now have to be interrogated, give a deposition under oath and go trial and go through all that?
Writing good laws is hard.
Writing good laws is hard sure but you're approaching this having already accepted the framing that the only way to prevent this police overreach is to restrict everyone from doing similar things. We can just prevent the police from doing this. We don't need to write a perfectly generalizable restriction on everyone's ability to take pictures or whatever. The cops aren't the public and should be subject to additional restrictions beyond what the public is subjected to.
My position is people should be free to photograph in public anything they can see. That's currently how the law is written. I don't think it's perfect, but I can't think of a better alternative (thus this discussion).
>The cops aren't the public and should be subject to additional restrictions beyond what the public is subjected to.
I agree as an ideal, but in practice there are a lot of barriers.
- They can legally arrest you, even if you didn't break any laws and aren't required to even know the law.
- They aren't legally required to help anybody.
- They have blanket qualified immunity granted by the SCOTUS.
- Each police department and sheriff's department is their own jurisdiction, so any blanket restraint would need to be done at the federal level.
- They have one of, if not the strongest unions in the country.
- They have strong political support that is just now eroding a bit in blue states.
An interesting irony is that the more laws / restrictions we ask the government to put on people, the broader jurisdiction the police have over our everyday lives.
An old example is jaywalking. Since jaywalking became a crime, the police can stop / detain you, legally require you to identify (and arrest / charge you if you refuse) and possibly Terry frisk you just because you walked across the street in a certain way.
Because of this, when people propose making a law to prevent people from doing something not-egregious, like say smoking at the beach, I'm against it. It's not worth the intrusion for me and my kids and my kids' kids, etc.
Anyway, I've gotten way off topic. Thanks for the discussion.
I'd be fine with regulating / banning without a warrant the second half of that sentence. I don't want to prevent people from having security cameras outside their home, those are pretty useful.
The current loophole is police asking the same 3rd parties that host your data for that data and those 3rd parties can comply without your consent. We'd need some type of data ownership laws for that sort of thing. I'd certainly support that. There are laws around NIL (name, image likeness) and ownership thereof. I'l like to see those applied to third party data storage vendors, but like dragon_lady mentioned, it's a step.
Of course, that wouldn't prevent the police asking your neighbor or local business for locally stored footage.
>the law is not an algorithm
Laws should be as specific and un-vague as possible to prevent abuse, mainly from the government itself.
A parent is not the government, and even though warrants are easy enough to get in most places at least they're following the letter of the law if not the spirit by getting one.
This is not a natural occurrence, not a law of physics like gravity. It’s the result of large corporations normalizing surveillance. Recall that some Germans rebelled against Google Street View, and the government made them stop putting photos people’s homes on the web. But the cold logic and power of surveillance capitalism prevailed, and even the nominally “privacy protecting” corporation Apple now does the same.
“That’s how it goes” implies it can’t be stopped. It can. Through laws. This branch of government just decided they’re not the ones to do it.
Well yeah, that's how it goes until the law changes.
This is of course not intended as legal advice.
The technical capabilities of state-based Survelliance keep rising. Just buying the data corporations keep on us seems like the absurd new main mode. Ring cameras, for example. Having the police themselves doing the spying, as here, seems almost old hat. But what absurd data they can get, given the high heights of technology we have flown to.
And probably do the same for the (registered) lobbyists and political donors, then look for after hours instances where the data shows their location being very close / overlapping.
Or something along those lines anyway. Would probably take a bunch more thinking about + some test investigation. ;)
They don't usually go after every decision they disagree with.
And for those that think the current SCOTUS is somehow anti-fourth-amendment, you should really read the Carpenter decision and opinions.
SCOTUS is also selective about taking cases beyond what you listed. It's one court for the whole of the US. Not taking a case is absolutely not a symbol of unimportance of an issue, or taking a side.
Their current purpose is mostly to clarify / set case law. Many cases just aren't a good fit for doing that. For example:
- The case might be messy, have auxiliary issues, or otherwise introduce unnecessary complexity
- They might not be ready to decide. For example, they might be waiting to hear more from lower courts, social consensus to come together, etc.
- They might not have time, or there might be more important issues
... and so on.
I don't think that was the implied conclusion. For a lot of us, it's still interesting to follow issues like this one.
As for lack of political agenda, the Supreme Court may be more polarized than it has ever been (at least in my lifetime), but it's worth looking in context: it's one of three branches.
As has always been the case in US history, it still has much less of a political agenda than either of the other two branches.
- If you're on the left, who seems most reasonable: Donald Trump, Kevin McCarthy, or the most anti-left member of the Supreme Court?
- If you're on the right, you can do the same exercise with Joe Biden, Nancy Pelosi, and the most anti-right member of the Supreme Court.
I have read many Supreme Court rulings I strongly disagreed with and which didn't reflect my values, but I've never read any which felt stupid, corrupt, or done in bad faith. That contrasts with legislative and executive completely.
Really? You haven't seen anything to the contrary? You haven't seen a supreme court justice being literally bribed for decades? You didn't see three recent supreme court appointees lie to congress?
I would say where there is a circuit split or an issue of particular importance to resolve (including, sometimes, a novel and significant challenge to existing Supreme Court precedent.) While there are a few cases that have probably been taken based on, or at least with, a prejudged outcome, I don’t think such is a norm such as to be listed as one of the major reasons the Court takes a case.
There's also a possibility that they don't disagree with this. My understanding is the current test is if there was a reasonable expectation of privacy. In this case, a neighbor could film your house from across the street, so there is no expectation of privacy since anyone can do what the ATF did here.
So they would only take this case if they are interested in changing the standard test. Maybe they will in a future case, or maybe they are fine with the current test.
* Mount a laser pointed at your window and do complex algorithms with diffraction to listen to you
* Run Tempest and read your computer monitor (pretend we still have CRTs)
* Use a telephoto camera to look through your windows
... and so on.
Those were impossible 100 years ago, were expensive a few decades ago (outside of the means of my neighbors), are within the means of many individuals today, and will probably be very cheap in a few more decades years. That makes a world of difference.
I don't think my neighbor should be allowed to do any of those. I'd like my privacy.
No, not legally. Most states have two-party recording laws, laws about recording on private property, etc.
"Use a telephoto camera to look through your windows"
No, not legally. That falls under what is generally termed peeping Tom laws. It varies slightly by state, but you cannot record people in a private setting without permission. You can view the outside of a home from a public space, and even the inside if just with the naked eye.
"Run Tempest and read your computer monitor (pretend we still have CRTs)"
This one is interesting. Side-channel attacks are difficult to find case law about since they tend to be relatively new and involve other steps that are already criminal.
In my state: Record? No. Listen? Yes.
> No, not legally. That falls under what is generally termed peeping Tom laws
In my state: Per statute, requires intent of voyeurism. There is some case law which suggests otherwise, based on a broad general right to privacy. It's very case-specific.
And I say peeping Tom laws, but some of the laws related there do not require it to be an intimate act. Some, like "prowling" laws make it a crime to be close to someone's house at night.
* If the lower courts agree and SCOTUS leaves them to it, they are defacto supporting what the lower courts agreed on no? "We agree because we agree" and "We agree because we don't know but accept whatever you decided" are the same thing...
* If the lower courts do NOT agree (like this case), then by declining the case SCOTUS is... agreeing that the same law means different things in different places with their jurisdiction. Which seems even bad for a whole other set of additional reasons.
Still, here we are I guess. There are plenty of other issues that other parts of government refuse to address (and I would argue that there accept the default state of) so why not SCOTUS too...
The supreme court has a very important power, which is to decline to hear and review cases. I think it was probably the right call in this case, even though I disagree with lower courts ruling that it is constitutional. If the supreme court were compelled to hear cases, it would result in a lot of bad precedent, and the court reserves ruling on things and changing/solidifying the status quo unless it approaches a crisis that needs their resolution.
1. Know the SC is going to decline anyway
2. Want press coverage and as much visibility on this as possible regardless
ACLU knows what they're doing. They're using the opportunity for (good) PR
Incidentally, this warrantless camera surveillance of specific targets is fairly similar to the current practice of private companies engaging in surveillance of all kinds of online communities, then selling their collected data to the FBI, which thus avoids the need to go before a judge to get a warrant.
https://www.leefang.com/p/private-spies-hired-by-the-fbi-and
Is this different here (legally that is)?
Honestly the only difference between how things are done traditionally and this is that the cop watching the footage isn't in a car outside with a video camera. Fundamentally functionally the scenarios are no different, one is just less cumbersome to do.
Now, I do think that even manual surveillance should require a warrant, as well as purchasing private evidence such as doorbell camera footage, but I'm unlikely to see a ruling in my favor on that any time soon.
You expect when you walk out of the house a neighbor might see what you’re doing. Hard to call it invasive if that happens a few times a week.
But if your neighbors take turns sitting on their porch, watching every move you make - if you can never come and go without them watching - and they’re taking notes and pictures of every visitor, every package, etc. - that would feel invasive for many people.
That’s the argument. Do you have a expectation of privacy in public? No. Do you have an expectation of constant surveillance? Also no.
I mean, maybe that's the expectation/argument from the 19th century. Cameras have been around a long time and are increasing in popularity among the general population (Ring etc). It might feel invasive, but there's no reasonable expectation of privacy legally.
Um. Isn't that what this case is trying to establish? It's unclear what the legal expectation is or isn't.
Just because we have the technology to do something doesn't mean it immediately follows that erodes a given right. The government can tap just about any call, but courts have restricted that substantially (at least in theory...). If you have not, I recommend watching The Wire and checking out all the hoops that the police have to jump through to establish cause and perform wire taps. Technology is very dated now, but it gives an interesting view. (It is also, I'll add, a damn good show...)
Here, the ACLU is trying to establish that constant camera surveillance of a house is a violation of your rights. Nobody is arguing it's not technically possible, nor is anybody arguing that my neighbor can't have a Ring camera that happens to have my house in its field of view.
But the state planting a camera specifically to surveil a house for months at a time is, arguably, a violation without showing any cause or getting a warrant to do so.
Not really. The general terms are quite settled that it is fine for a person to film stuff from a public area, even if they are able to see a private area. The question is about whether police can also do that or if the 4th amendment prohibits it. Based on the long standing decisions that you don't have an expectation of privacy of being filmed from a public location and that the reasonable expectation of privacy is all that prohibits a "search", then it's a pretty logical outcome. Unless, again, they want to change the longstanding test. So it would not be about establishing anything, but rather changing something.
I personally believe that cameras in public places should not be blanket banned, but that individuals should have a viable avenue to get them removed if they care to expend some (legal?) effort.