March 2, 2016 | By Jennifer Lynch

EFF Urges Sixth Circuit to Revisit Case Finding No Warrant Needed for Ten Weeks of Covert 24/7 Video Surveillance

EFF joined NYU Law School’s Brennan Center for Justice, ACLU, National Association of Criminal Defense Lawyers, the Libertarian National Committee, and former Congressman Bob Barr in urging the Sixth Circuit Court of Appeals to revisit a recent opinion finding no reasonable expectation of privacy in 10 weeks of continuous, surreptitious video surveillance. The opinion sets a dangerous precedent that law enforcement officers in Kentucky, Ohio, Michigan, and Tennessee don’t need a warrant to film your every move in front of your house.

In 2012, the Bureau of Alcohol, Tobacco, Firearms, and Explosives set up a surveillance camera on a utility pole just outside of Rocky Houston’s farm in rural Tennessee. The camera, which could pan and zoom, was focused on the trailer and barn where Houston spent most of his time and recorded everything that happened there for 10 weeks. ATF officers didn’t get a warrant before setting up the camera and eventually used the footage as the basis for a warrant to search Houston’s property, where they found 25 firearms.

The Sixth Circuit held the warrantless video surveillance didn’t violate the Fourth Amendment because Houston had no reasonable expectation of privacy in the area in front of where he lived. The court determined the view from the camera was no different from that of anyone who happened to pass by the property—despite the fact that the camera was on top of a utility pole and recorded continuously in a rural area where ATF agents had already determined drive-by surveillance wouldn’t work because “their vehicles ‘[stuck] out like a sore thumb.'”

In our amicus brief, we argued the court failed to account for the realities of modern technology by equating continuous, sophisticated video surveillance with the “views enjoyed by passersby on public roads.” In relying on Supreme Court case law addressing 1980s technology, such as United States v. Knotts (a case involving a primitive beeper used to track a car during a single trip on a public road) and California v. Ciraolo (one-time flyover of a property), the court completely disregarded more recent cases like United States v. Jones and Riley v. California, which recognized that advanced technology changes the equation and makes it possible for the government to collect and retain private information on a scale unimaginable when Knotts and Ciraolo were decided.

Although the Sixth Circuit failed to equate the ten weeks of 24/7, covert video surveillance in Houston with the 28 days of 24/7 covert, GPS vehicle tracking in Jones, the similarities far outweigh the differences. Both allow the government to learn a “wealth of details” about a person’s private life, whether those details are determined from the places the car owner travels, as in Jones, or the people who visit and the activities that occur at the house, as in this case.

This is not the first time EFF has been involved in a case addressing extended, covert pole-camera surveillance of the front of someone’s home. In 2014, at the request of the court, EFF served as amicus in United States v. Vargas, a case with very similar facts. In Vargas, as here, we argued the Fourth Amendment prohibits warrantless 24/7 video surveillance because no one expects their house to be watched continuously, day and night, for days at a time. The court agreed, suppressing the evidence and holding:

Law enforcement's warrantless and constant covert video surveillance of Defendant's rural front yard is contrary to the public's reasonable expectation of privacy and violates Defendant's Fourth Amendment right to be free from unreasonable search.

This is the right analysis. We hope the Sixth Circuit will grant en banc reconsideration by the entire appellate court in Houston and ensure that advanced technologies allowing for covert and near-constant surveillance do not erode our privacy rights guaranteed by the Fourth Amendment.

- United States v. Houston - Sixth Circuit Court of Appeals Panel Opinion

- United States v. Houston - Amicus Brief

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