“[W]e are increasingly faced with the difficult question of whether to reign in technological capabilities to account for privacy expectations.”
Imagine you live in this home in this remote area (scroll to pages 18-21). Imagine further that you enjoy target shooting. You walk out your front door and into your front yard, which is surrounded by a chain link fence and next to a dirt road. Once in the yard you set up a target and begin to shoot. Because of the remoteness of your location, you believe that nobody is watching. Unbeknownst to you, a month ago, the police installed a video camera on a pole adjacent to your property. The camera is aimed at the front of your house and yard, can pan and zoom, and has recorded everything that has happened in the front of your home over the last month. Should the police have been required to obtain a warrant prior to installing the camera?
A federal district court is currently considering this issue in United States v. Vargas, Docket No. 2:13-cr-06025 (E.D. Wash. May 22, 2013). In Vargas, the conduct is not as innocent as portrayed above. The police believed Mr. Vargas was engaged in illegal drug activity, which is why they installed the camera. Moreover, Mr. Vargas, as an undocumented alien, would be in violation of federal law if he possessed a firearm. So, when he was caught on camera handling firearms, the police used the opportunity to obtain a warrant to search his home. Drugs and guns were found as a result of the search. Mr. Vargas moved to suppress the evidence obtained from his home.
The Electronic Frontier Foundation (“EFF”), a nonprofit advocacy organization, filed an amicus brief supporting the defendant (side note: Edward Snowden reportedly wore an EFF hoodie parodying the NSA’s logo). EFF argued, among other things, “Mr. Vargas had a reasonable expectation of privacy to be free from continuous video monitoring.” This proposition seems reasonable. Perhaps the police should be required to obtain a warrant before they set up a camera aimed at someone’s home. In Vargas, although the police had reason to believe Mr. Vargas was engaged in criminal activity, this suspicion, theoretically, is immaterial. If the government prevails, and the video surveillance was not a search, the police may use this tactic without the slightest sneaking suspicion of wrongdoing. Practically speaking, though, we don’t expect the police to aim cameras at a person’s home without a reason.
Furthermore, the government’s assertion that Mr. Vargas did not have a reasonable expectation of privacy in his front yard is forceful. The government’s response brief states: “Misplaced confidence that your actions in the open have gone unnoticed is not a reasonable expectation of privacy.” Indeed, a passerby, let alone an officer conducting surveillance, could have observed Mr. Vargas firing his weapon without Mr. Vargas’s noticing. So, naturally, under existing Fourth Amendment case law, the government appears to have the better argument. Generally, a video camera aimed at a home is not a search unless it captures an area that is not otherwise in plain view. See, e.g., United States v. Bucci, 582 F.3d 108 (1st Cir.2009) (video camera installed on utility pole and aimed at driveway and garage interior for eight months was not a search because recorded areas were observable from street); United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir.1987) (video camera installed on utility pole aimed in back yard that was surrounded by a ten-foot high, solid fence constituted a search); see also LaFave, 1 Search & Seizure § 2.3(g) (5th ed.).
Assuming the government prevails, the outcome will be somewhat troubling despite the reasonableness of the government’s position. Video cameras are increasingly ubiquitous and can capture and store an extensive amount of information (in New York City, for example, there are 6,000 public-sector cameras). Add new and developing technologies such as facial recognition and drones to the mix, and it’s easy to see how this old technology can raise the specter of a surveillance state.
Technological advancements have always presented unique challenges to Fourth Amendment jurisprudence. Underlying cases like Vargas is a difficult question: when, if ever, does something that does not violate reasonable privacy expectations in one circumstance become unreasonable when executed for a long time and/or on a large scale? If cameras viewing publicly observable areas do not constitute searches, for example, should police be able to install them on every street corner or place them on drones flying overhead to combat crime? The practical limitations of storing the vast amounts of data that such practices would collect and of locating useful information within massive amounts of data (i.e. hours upon hours of video footage) are also evaporating. See, e.g., Drop a bag in NYC? Cue the bomb squad. Given these technological advancements, we are increasingly faced with the difficult question of whether to reign in technological capabilities to account for privacy expectations. How we will respond is an open question. In the meantime, take care to build a high, opaque fence (if you are so inclined).
Posted April 7, 2014