Setting limits on video surveillance in public places

April 6, 2015
Recent court cases establish new ground rules for law enforcement

One of the attractions of publicly-owned video camera networks for law enforcement is that they are, by and large, unregulated by state or federal law.  That said, a growing line of cases interprets the Fourth Amendment as setting an outside boundary for when public video surveillance crosses the line from efficient law enforcement tool to an illegal infringement of an individual’s reasonable expectation of privacy.

Three recent court decisions establish the limits that law enforcement needs to bear in mind when targeting video cameras, using GPS systems and “pinging” cell phones.  In U.S. v. Jones, the U. S. Supreme Court decided that tracking a car with a GPS unit for 28 days violated an individual’s reasonable expectation of privacy.  The opinion also broke new ground, however, by deciding that publicly disclosed information by an individual (like the location of a car) is subject to Fourth Amendment protection. As Justice Sotomayor wrote in her concurrence, "I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on." The prolonged monitoring by a GPS, like the prolonged targeting of video surveillance cameras, creates a complete picture of the private life of an individual.  As Justice Alito wrote in his concurring opinion, "We need not identity with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark."

A second decision shedding light on how long is too long is U.S. v. Vargas, (U.S. District Court, Eastern District of Washington, Dec.  15, 2014) where the court found that a video surveillance camera focused on an individual’s front yard in a rural setting violated his reasonable expectation of privacy.  "Accordingly, the Court’s analysis focuses on whether Mr. Vargas had a reasonable expectation of privacy to not have his front yard continuously observed and recorded for six weeks by a camera with zooming and panning capabilities hidden on a telephone pole over a hundred yards away, and whether his subjective expectation of privacy is objectively reasonable," Senior U.S. District Court Judge Edward F. Shea wrote in an order granting a defense motion to suppress evidence gathered by the camera in question.  The court found that continuous video surveillance of an individual’s front yard for six weeks "provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the specter of the Orwellian state."  The court focused on the fact that the unsuspecting Mr. Vargas lived in a rural area on a gravel road and "Mr. Vargas could hear a vehicle coming down the gravel road and modify his behavior…," wrote Shea. The reasonableness of his expectation of privacy was therefore influenced by where he lived.  If he lived on Chicago’s South Side near the home of the White Sox in April, and the camera was targeted on his front yard for three weeks, his expectation of privacy might have been found to be unreasonable, and the video surveillance might have been upheld as consistent with Fourth Amendment protections.

U.S. v. White  (U.S. District Court, Eastern District of Michigan, Southern Division, Nov. 24, 2014) involved the “pinging” of an individual’s cellphone repeatedly over two thirty-day periods to determine his constant whereabouts.  The court wrote, "The blanket surveillance of an individual for thirty days at a time cannot equate to a brief detention, however.  The 'nature and quality' of an intrusion of that magnitude (in excess of the ‘the 4-week mark’) tips the balance in favor of the individual; it constitutes a breach of one’s reasonable expectation of privacy that requires the state to demonstrate probable cause as a justification for the intrusion."   

Three common threads emerge from these cases as it relates to video surveillance.  First, publicly disclosed information (i.e., an individual’s location) is subject to Fourth Amendment protection, just as much as a search of a private residence.  GPS monitoring "generates 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…" Justice Sotomayor wrote in her concurrence on Jones.  A second thread is the consensus around how long is too long for an individual’s public movements to be monitored.  The four-week mark, according to these three recent court decisions, is too long.  Perhaps changing the targeting of a police department’s video surveillance cameras every three weeks adequately protects the reasonable expectations of privacy of city residents and visitors as required by the Fourth Amendment.  The third point which emerges is that the advance of technology continues to change what an individual can reasonably expect to be private. Justice Alito has the last word:

"New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.  And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable."

About the Author

Alan Wohlstetter, Esq. | Partner, Zarwin Baum DeVito Schaer Toddy

Alan Wohlstetter, Esq., is a partner in the law firm of Zarwin Baum DeVito Schaer Toddy P.C.