Last week, a defendant in the U.S. Court of Appeals for the Seventh Circuit who lost his appeal filed a petition asking the U.S. Supreme Court to review whether warrantless long-term pole camera surveillance of a private residence violates the Fourth Amendment protection against unreasonable government searches.
In the Seventh Circuit case, United States v. Tuggle, law enforcement installed a camera outside of a man’s home and recorded him continuously for 18 months, ultimately securing a search warrant based principally on the evidence obtained from the pole camera. In the Seventh Circuit decision denying Tuggle’s motion to suppress the evidence, the court found this surveillance to be reasonable because the cameras “captured events observable to any ordinary passerby.” However, the Seventh Circuit expressed reservations about the ramifications of its decision, despite feeling bound by precedent.
Under United States v. Katz, a government search occurs when the government intrudes into a person’s expectation of privacy that society is prepared to recognize as “reasonable.” When a person reveals his or her movement to the public or a third party, the court has found this destroys that expectation of privacy and therefore the Fourth Amendment does not protect such movement from warrantless law enforcement surveillance.
However, in recent decisions involving technologically advanced tactics, the Supreme Court has found warrantless GPS tracking of an individual’s car on public roads and the collection of historical cell-site location information to run afoul of the Fourth Amendment. Despite both types of information being exposed to third parties or the public generally, the Supreme Court found such prolonged surveillance revelatory of “a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious and sexual associations” sufficient to render such collection a search and therefore unreasonable absent a warrant.
This issue is ripe for Supreme Court review, as the Reporters Committee has noted. Recent federal and state court considerations of this question have resulted in a split of authority on whether this type of long-term surveillance contravenes the Fourth Amendment protection from unreasonable searches.
As the Reporters Committee has argued in the past, targeted, long-term surveillance threatens the First Amendment. Confidential contacts between reporters and sources play an essential role in gathering the news. This decision could authorize long-term, covert surveillance of a newspaper office or suspected source’s home, chilling the reporter-source relationships vital to our free press.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.