Earlier this year, the U.S. Supreme Court provided some comfort to those fearing the seemingly limitless potential of new technologies to enable government privacy invasion. In holding that police could not attach a GPS device to a car and track it for 30 days without a warrant, the court said, “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”
But don’t get too comfortable. A federal appeals court ruled last week that police can secretly videotape a suspect’s home without a warrant. In a case about the suspected sale of bald eagle feathers and pelts – a misdemeanor crime — the U.S. Court of Appeals for the Ninth Circuit held that undercover police admitted into the suspect’s home as interested buyers of pelts did not violate the Fourth Amendment when they secretly videotaped the suspect’s home:
We are persuaded that it is not “constitutionally relevant” whether an informant utilizes an audio-video device, rather than merely an audio recording device, to record activities occurring inside a home, into which the informer has been invited. When Wahchumwah invited Agent Romero into his home, he forfeited his expectation of privacy as to those areas that were “knowingly expose[d] to” Agent Romero. Wahchumwah cannot reasonably argue that the recording violates his legitimate privacy interests when it reveals no more than what was already visible to the agent.
The decision doesn’t entirely break new ground. At least one other federal appeals court has upheld the use of video recordings inside the home, and just last month, a lower federal court reached a similar conclusion.
But the case raises the same sorts of concerns that several concurring justices emphasized in the U.S. Supreme Court’s decision last term in United States v. Jones: What scope of surveillance will not violate our present understanding of a “reasonable expectation of privacy”? At what point are we, as Justice Sonia Sotomayor cautions in Jones, “making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track, may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’”? Electronic Frontier Foundation staff attorney Hanni Fakhoury elaborates on this concern:
[T]he sad truth is that as technology continues to advance, surveillance becomes “voluntary” only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we’re entering an age where criminal suspicion is no longer even necessary. Whether you’re calling a friend’s stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using licenseplatescanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.
The fractured majority in United States v. Jones didn’t provide much guidance about where the court will draw future lines on surveillance, relying instead upon the fact that the Jones case involved a physical trespass — a type of privacy violation of particular constitutional concern. Of course, the Ninth Circuit case involved a physical intrusion in the place subject to the greatest Fourth Amendment protection — the home. Whether it became something other than a trespass — and sufficient grounds to authorize invasive surveillance — because the suspect unknowingly admitted the undercover officer into his home is another question that may be for ripe for Supreme Court consideration.