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You Are Being Watched: How Long Is Too Long?

June 1, 2015

The cities of Baltimore, New York and Chicago continue to demonstrate the effectiveness of city-owned video camera networks as they relate to crime reduction, effective law enforcement, and increased officer safety. It is worth noting, however, that publicly owned video camera networks are by and large unregulated. Amidst the positive results, however, an important question has surfaced: When does public video surveillance cross the line from an 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" cellphones. In United States v. Jones, 132 S. Ct. 945 (2012), the U.S. Supreme Court decided that tracking a car with a GPS for 28 days violated an individual's reasonable expectation of privacy. The opinion broke new ground by deciding that publicly disclosed information by an individual (like the location of a car) is subject to Fourth Amendment protection. As Justice Sonia 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 Samuel 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 four-week mark."

A second decision shedding light on how long is too long is United States v. Vargas, U.S. District Court, Eastern District of Washington, December 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. [Leonal Michael] 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." Quoting George Orwell's "1984," and its vision of the future where Big Brother is always watching, 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 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." 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.

United States v. White, U.S. District Court, Eastern District of Michigan, Southern Division, November 24, 2014, involved the "pinging" of an individual's cellphone repeatedly over two 30-day periods to determine his constant whereabouts. The court wrote, "The 'nature and quality' of an intrusion of that magnitude (in excess of the 'four-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. Sotomayor concluded that 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." 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 that emerges is that the advance of technology continues to change what an individual can reasonably expect to be private. 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." This article was written by Alan F. Wohlstetter and published in the Legal Intelligencer.

Alan F. Wohlstetter is a shareholder and head of the public finance and charter school practices at Zarwin Baum DeVito Kaplan Schaer Toddy. Click here to read the article.


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