In 2018, the U.S. Supreme Court held in Carpenter v. United States that police need a warrant to gather more than a week’s worth of historical cell-site location data. Courts have since continued to assess what effect that decision has on other kinds of law enforcement location surveillance. The full bench of the U.S. Court of Appeals for the First Circuit will soon review a panel decision in United States v. Moore-Bush, a case involving a camera that police attached to a utility pole outside someone’s home without a warrant.
The Reporters Committee, along with eight media organizations, submitted a friend-of-the-court brief in this case earlier this month. The brief urges the court to consider the effects that such technologies can have on First Amendment interests, in addition to analyzing them under the Fourth Amendment. The brief points to Supreme Court precedent suggesting that Fourth Amendment review must be particularly searching when First Amendment interests are at stake.
Warrantless, long-term, targeted surveillance can chill newsgathering and impair the ability of reporters to guarantee source confidentiality. Anonymous sources are crucial to reporting on sensitive stories, especially stories on government activity. With the rise of electronic surveillance, many anonymous sources prefer to meet in person with reporters — but such in-person meetings are exactly the kind that are susceptible to warrantless camera surveillance. Under current First Circuit law, police could deploy cameras merely with the hopes of, say, catching the next Neil Sheehan visiting the next Daniel Ellsberg’s apartment.
The Reporters Committee will continue to monitor other post-Carpenter cases involving location technologies for their impacts on reporters and newsgathering. In particular, we are watching Leaders of a Beautiful Struggle v. Baltimore Police Department, a case challenging the deployment of a wide-area aerial surveillance program in Baltimore, Maryland. The U.S. Court of Appeals for the Fourth Circuit will rehear that case en banc on March 8.
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 Mailyn Fidler.