The U.S. Supreme Court today declined to hear Moore v. United States, leaving in place a patchwork of lower court decisions on an important and recurring question about privacy rights in the face of advancing surveillance technology.
In this case, police secretly attached a small camera to a utility pole, using it to surveil a Massachusetts home 24/7 for eight months — all without a warrant. Law enforcement could watch the camera’s feed in real time, and remotely pan, tilt, and zoom close enough to read license plates and see faces. They could also review a searchable, digitized record of this footage at their convenience. The camera captured every coming and going of the home’s residents and their guests over eight months. As a result, the government targeted the home of a community pillar — a lawyer, respected judicial clerk, devoted church member, and a grandmother raising her grandkids — to cherry-pick images from months of unceasing surveillance in an effort to support unwarranted criminal charges against an innocent person.
Federal courts of appeals and state supreme courts have divided on the question of whether such sweeping surveillance is a Fourth Amendment search requiring a warrant. The highest courts of Massachusetts, Colorado, and South Dakota have held that long-term pole camera surveillance of someone’s home requires a warrant. In Moore v. United States, the members of the full en banc U.S. Court of Appeals for the First Circuit split evenly on the question, with three judges explaining that a warrant is required, and three judges expressing the belief that the Fourth Amendment imposes no limit on this invasive surveillance. This issue will continue to arise in the lower courts; the ACLU filed an amicus brief on the question in the U.S. Court of Appeals for the Tenth Circuit earlier this month.
“The Supreme Court’s decision not to hear this case means that people in many parts of the country remain vulnerable to law enforcement’s claim of unfettered authority to surveil any of us at our homes, for as long as they wish, with no judicial oversight,” said Nathan Freed Wessler, deputy director of the ACLU’s Speech, Privacy, and Technology Project. “As the cost of surveillance technology falls and its use by law enforcement expands, the need to resolve whether the Fourth Amendment poses any constraint has become all the more urgent. We will continue fighting for essential privacy protections.”
“Pole cameras allow police to secretly watch and record highly invasive details of our private lives, from when we leave and return home, to what we carry with us when we do, to who visits us, and when,” said Jessie Rossman, managing attorney at the ACLU of Massachusetts. “The Massachusetts Supreme Judicial Court has already held that continuous, long-term pole camera surveillance of a home constitutes a search requiring a warrant under the Massachusetts Constitution. But the Supreme Court missed an important opportunity to ensure that protection nationwide.”
“We are disappointed that the Supreme Court did not take this opportunity to vindicate Daphne’s privacy rights, but we look forward to vindicating her at trial.” said Paul Rudof of Elkins, Auer, Rudof & Schiff, who leads Ms. Moore’s criminal defense.
