May 2, 2012 | By Hanni Fakhoury

Time to Make Warrantless Home Video Surveillance Extinct

It seems that the government's thirst for high tech surveillance can't be quenched. First, came the NSA's warrantless wiretap program. Then it was CISPA. Now, its warrantless video surveillance in the home. And just like we stood up against the NSA and CISPA, yesterday we told the Ninth Circuit Court of Appeals that invasive warrantless home video surveillance violates the Fourth Amendment.

Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, a undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwah's house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwah's home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded.

Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under the Fourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him.

As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesn't forget. After all, if an officer's observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Court's landmark decision in United States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a person's car on public roads for 28 days, we make two main arguments.

First, the initial appellate opinion in Jones issued by the D.C. Circuit (at the time called United States v. Maynard) explained that although a person may reveal discrete parts of his movements when driving in public, "the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil." While the Supreme Court affirmed the D.C. Circuit under a trespass theory instead, the D.C. Circuit's astute point applies equally to video surveillance. Even if Wahchumwah permitted the undercover agent into his home, it would be extremely unlikely that Wahchumwah, or anyone else, would expect that his house guest was secretly video recording every little detail. And that meant even if Wahchumwah consented to the agent entering his house, he certainly did not consent to secret video surveillance. 

Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to "alter the relationship between citizen and government in a way that is inimical to democratic society.” While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human mind's tendency to forget. It can rewind again and again to examine every minute detail of the house.

In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the government's need to investigate crime, and the public's right to privacy -- particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all.

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