Supreme Court leaves warrantless camera surveillance an open book

Can police just set up CCTV and press record? In some places, yes

The US Supreme Court has refused to hear a petition to review the legality of warrantless surveillance from a camera placed on a utility pole, leaving in place a conflicting set of interpretations about the scope of privacy protection in America.

The Supremes left in place an appellate ruling that gives federal agents in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island – the areas covered by the First Circuit Court of Appeals – the right to record people's houses from the street as much as they want without a warrant, despite legal precedent to the contrary in Massachusetts.

Last November, the American Civil Liberties Union asked the Supreme Court to review Moore v. United States in order to clarify the ambit of the Fourth Amendment, which protects people against unreasonable search and seizure.

The case followed from a drug investigation in which agents from the Bureau of Alcohol Tobacco and Firearms (ATF) set up an inconspicuous surveillance camera on a utility pole in Massachusetts to watch a residence over an eight-month period. The camera provided real-time surveillance capabilities and was set up without a warrant.

Initially, the investigation focused on Dinelson Dinzey and Nia Moore-Bush (later Nia Dinzey after marriage), the daughter of homeowner and petitioner Daphne Moore.

Moore-Bush and four-defendants were indicted for illegal drug distribution on January 11, 2018. She pleaded guilty of drug trafficking, firearms and money laundering conspiracy six months later. In December 2018, Daphne Moore was indicted for illegal drug distribution, conspiracy, money laundering, and making false statements to authorities.

Moore and Moore-Bush sought to suppress the evidence gathered as a consequence of the pole camera and a federal district court granted that motion, determining that placing the camera for eight months required a warrant.

The government appealed and a portion of the First Circuit Court of Appeals agreed with the government and reversed the suppression of evidence. The petitioners filed for further review, an en banc hearing before the full First Circuit. But the appeals court let the decision stand, even though the judges deadlocked 3-3 on whether long-term video surveillance of a home and its surroundings violated the Fourth Amendment.

Courts elsewhere in the US have come to different conclusions: The Fifth Circuit Court of Appeals and the state Supreme Courts of Colorado and South Dakota have held that the surveillance at issue violated reasonable expectations of privacy and thus qualifies as a search under the Fourth Amendment.

The lack of clarity about the issue is just the sort of thing that the Supreme Court was intended to resolve. But the Court balked.

"The Supreme Court's decision not to hear this case means that people across the country remain vulnerable to law enforcement’s claim of unfettered authority to surveil any of us at our homes, for as long as they wish, with no judicial oversight," said Nathan Freed Wessler, deputy director of the ACLU’s Speech, Privacy, and Technology Project, in a statement.

"As the cost of surveillance technology falls and its use by law enforcement expands, the need to resolve whether the Fourth Amendment poses any constraint has become all the more urgent. We will continue fighting for essential privacy protections."

In an interview, Jake Laperruque, deputy director of the Center for Democracy & Technology's Security and Surveillance Project, told The Register that the Supreme Court's failure to address the issue is disappointing and leaves the legality of warrantless video surveillance in limbo.

"We've had a number of state supreme courts rule one way," he said, "we've had federal courts rule the other way. And now this case in which the First Circuit was evenly split down the middle on whether or not a warrant would be required.

"It's really the type of uncertainty that wants SCOTUS to step in on. It's unfortunate because it is a very important issue and one that I think having clarity on and having new protections for individuals' privacy would be very, very important."

Laperruque said he doubts lawmakers in Congress will try to clarify things through legislation.

"Unfortunately, I think this is an area where Congress really hasn't stepped up as much as it should, in terms of taking on some of these questions and providing the clear details and rules that you would expect from legislation rather than a court ruling."

Laperruque said it's important to understand that area-based video surveillance can capture a lot of details about people's lives, particularly when used in conjunction with video analytics systems.

"This is not the same as a pair of cops staking out an apartment," he said. ®