fourth amendment – Attorney Evan Brown

March 19, 2024 Right of Publicity

Months long video surveillance of house did not violate the Fourth Amendment

video surveillance fourth amendment

“As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.”

Defendant was convicted of stealing government funds and of wire fraud for receiving disability benefits provided to veterans when in fact defendant – though being a veteran – was not disabled. Part of the evidence the government used against defendant was video footage obtained from a pole camera the government had set up on the roof of a school across the street from defendant’s home. It surveilled his house for 15 hours a day for 68 days. After being convicted, defendant sought review with the Tenth Circuit Court of Appeals, arguing that the near-continual surveillance of his house was an unreasonable search under the Fourth Amendment. The court disagreed and affirmed the conviction.

The development of a reasonable expectation of privacy

The court observed the importance of the notion of a citizen’s “reasonable expectation of privacy,” a concept that has evolved over time from its original ties to common-law trespass to encompass a broader range of privacy expectations recognized by society as legitimate.

Historically, the Supreme Court has maintained that activities exposed to public view do not enjoy a reasonable expectation of privacy. For example, in California v. Ciraolo, 476 U.S. 207 (1986), the court held warrantless observation of a home’s exterior from public airspace was not a Fourth Amendment violation on the grounds that these observations did not penetrate private, concealed areas.

In Kyllo v. United States, 533 U.S. 27 (2001), the court held that the use of thermal imaging to discern details within a home, unobservable to the naked eye, was a search requiring a warrant. This marked a departure towards acknowledging privacy infringements facilitated by technology not widely available to the public.

In United States v. Jackson, 213 F. 3d 1269 (10th Cir. 2000) the Tenth Circuit held that video surveillance capturing activity visible without enhancement did not violate the Fourth Amendment. The court grounded its decision in the principle that what one knowingly exposes to public observation falls outside the Fourth Amendment’s protection. The surveillance in question, similar to the one in this case involved recording the exterior of a residence, capturing scenes observable from public vantage points, thus not constituting a search under the Fourth Amendment.

But in this case, the surveillance was constant

In this case, defendant relied heavily on the case of Carpenter v. United States, 138 S. Ct. 2206 (2018), where the Supreme Court ruled that accessing historical cell-site location information constituted a search under the Fourth Amendment. This decision underscored the intrusive potential of prolonged surveillance, highlighting the significant privacy concerns associated with compiling a comprehensive record of an individual’s movements over time. But the court in this case observed that the scope of the Carpenter case scope was explicitly narrow, not extending to conventional surveillance methods such as security cameras.

So the court distinguished the present situation from Carpenter, noting that the pole camera only captured what was visible from the street and did not provide a comprehensive record of defendant’s movements beyond the monitored location. Accordingly, in the court’s view, the surveillance did not infringe upon the reasonable expectation of privacy as articulated in Carpenter, which pertained to the aggregate of an individual’s movements over an extended period.

More technology = changing norms regarding privacy

Furthermore (in probably the most intriguing part of the opinion), the court noted the evolving societal norms around privacy, especially in the context of the widespread proliferation of cameras in public and private spheres. This ubiquity of video recording technology, coupled with the societal acclimatization to being recorded, has inevitably influenced expectations of privacy. As surveillance technologies become more integrated into everyday life, the threshold for what constitutes a “reasonable expectation of privacy” shifts, reflecting the dynamic interplay between technological advancements and societal norms.

So the court concluded that defendant did not have a reasonable expectation of privacy concerning the footage captured by the pole camera, as it only recorded what was visible to any passerby from the street.

United States v. Hay, — F.4th — 2024 WL 1163349 (10th Cir., March 19, 2024)

See also:

May 15, 2018 Privacy

No privacy violation for disclosing information otherwise available on member-only website

Plaintiff sued several defendants related to her past work as a government employee. She sought to amend her pleadings to add claims for violation of the Fourth Amendment and the federal Stored Communications Act. She claimed that defendants wrongfully disclosed private medical information about her. The court denied her motion to amend the pleadings to add the Fourth Amendment and Stored Communications Act claims because such amendments would have been futile.

Specifically, the court found there to be no violation because she had no reasonable expectation of privacy in the information allegedly disclosed. She had made that information available on a website. Though to view the information required signing up for an account, plaintiff had not set up the website to make the information available only to those she invited to view it. The court relied on several cases from earlier in the decade that addressed the issue of privacy of social media content, among them Rosario v. Clark Cty. Sch. Dist., 2013 WL 3679375 (D. Nev. July 3, 2013), which held that one has no reasonable expectation of privacy in his or her tweets, even if he or she had maintained a private account. In that case, the court held that even if the social media user maintained a private account, his tweets still amounted to the dissemination of information to the public.

Burke v. New Mexico, 2018 WL 2134030 (D.N.M. May 9, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

February 19, 2014 Privacy

Massachusetts supreme court says cops should have gotten warrant before obtaining cell phone location data

Court takes a “different approach” with respect to one’s expectation of privacy

After defendant’s girlfriend was murdered in 2004, the police got a “D order” (an order authorized under 18 U.S.C. 2703(d)) from a state court to compel Sprint to turn over historical cell site location information (“CSLI”) showing where defendant placed telephone calls around the time of the girlfriend’s murder. Importantly, the government did not get a warrant for this information. After the government indicted defendant seven years later, he moved to suppress the CSLI evidence arguing a violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the government sought review with the Massachusetts supreme court. That court agreed, holding that a search warrant based on probable cause was required.

The government invoked the third party doctrine, arguing that no search in the constitutional sense occurred because CSLI was a business record of the defendant’s cellular service provider, a private third party. According to the government, the defendant could thus have no expectation of privacy in location information — i.e., information about the his location when using the cell phone — that he voluntarily revealed.

The court concluded that although the CSLI at issue was a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case — where the CSLI obtained covered a two-week period — the warrant requirement of the Massachusetts constitution applied. The court made a qualitative distinction in cell phone location records to reach its conclusion:

No cellular telephone user . . . voluntarily conveys CSLI to his or her cellular service provider in the sense that he or she first identifies a discrete item of information or data point like a telephone number (or a check or deposit slip…) … In sum, even though CSLI is business information belonging to and existing in the records of a private cellular service provider, it is substantively different from the types of information and records contemplated by [the Supreme Court’s seminal third-party doctrine cases]. These differences lead us to conclude that for purposes of considering the application of [the Massachusetts constitution] in this case, it would be inappropriate to apply the third-party doctrine to CSLI.

To get to this conclusion, the court avoided the question of whether obtaining the records constituted a “search” under the Fourth Amendment, but focused instead on the third party doctrine (and the expectation of privacy one has in information stored on a third party system) in relation to the Massachusetts constitution.

In a sense, though, the court gave the government another bite at the apple. It remanded the case to the trial court where the government could seek to establish that the affidavit submitted in support of its application for an order under 18 U.S.C. § 2703(d) demonstrated probable cause for the CSLI records at issue.

Commonwealth v. Augustine, — N.E.3d —, Mass. , 2014 WL 563258 (Mass. February 18, 2014)

February 4, 2014 Anonymity, Computer Crime, Evidence, Privacy

No privacy interest in photo metadata

using-exif-data A digital photo’s EXIF data can reveal where the photo was taken. This has created some interesting scenarios in the past. Consider Vice.com’s inadvertent revealing of John McAfee’s location in Central America, a cleavage pic of a hacker’s girlfriend leading to the hacker’s arrest, and MythBusters host Adam Savage disclosing where he lived from a photo he posted on TwitPic.

In this case, a photo’s EXIF data led to the arrest of an admitted child pornographer.

Defendant took a pornographic image of a 4-year-old girl with his iPhone and used TOR to upload the image to the web. Federal agents analyzed the photo’s EXIF data to determine the GPS coordinates of where defendant took the photo. Agents went to a home near the coordinates. The residents of that home sent the agents to a home about 100 feet away — within the iPhone’s GPS range of error — that belonged to defendant, a registered sex offender.

When the agents visited defendant’s home, he let them enter and later admitted to taking the photo. He then consented to a search, and the agents found child pornography. Defendant was arrested and indicted in federal court in Texas.

Defendant moved to supress the EXIF data as evidence, arguing that law enforcement’s seizure and use of the data violated his Fourth Amendment rights. The court denied the motion.

It rejected defendant’s attempt to “split” his privacy interests between the photo itself and its metadata. Defendant conceded he had no legitimate Fourth Amendment expectation of privacy in the photo — after all, he put it on the web. But as for the metadata, he argued that he retained a privacy interest because he did not realize that he was releasing the information and he intended to remain anonymous.

The court looked to the application of DNA technology to support its conclusion that once defendant left the image in a public place, he had no privacy interest in the metadata:

Assume a defendant left an article of his clothing at a crime scene in 1981. At the time, the defendant had no idea that years later crime labs would be able to conduct DNA analysis of hairs present on that clothing. And in leaving the clothing, he certainly intended to do so “anonymously.” On those grounds, would the defendant be able to suppress the results of the DNA analysis? Of course not, because he left the clothing in a public place and lost any expectation of privacy he had in it, regardless of how he contemplated that clothing could be used.

The court distinguished the holding of this case from the current NSA metadata-collection controversy:

Whatever the ultimate outcome of that issue in higher courts, whether an individual lacks a privacy interest in dialed numbers because those numbers are necessarily disclosed to his phone company is a much different question than whether an individual loses his privacy interest in an item because he voluntarily makes it publicly available on the internet.

It also distinguished this situation from those cases dealing with a defendant’s Fourth Amendment rights in his cell phone and its contents. In those cases, observed the court, the defendant clearly has a privacy interest in his cell phone and its contents. The issue there is whether the justifications that overcome that privacy interest and allow for warrantless seizure of the phone also support warrantless search of its contents. The defendant in this case, by contrast, had no cognizable privacy interest that the government needed to overcome to justify searching for metadata in the photo he placed on the web.

U.S. v. Post, 2014 WL 345992 (S.D.Tex. January 30, 2014)

August 14, 2012 Computer Crime, Privacy

No Fourth Amendment violation when government looked at Facebook profile using friend’s account

U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012)

The government suspected defendant was involved in illegal gang activity and secured the assistance of a cooperating witness who was a Facebook friend of defendant. Viewing defendant’s profile using the friend’s account, the government gathered evidence of probable cause (discussion of past violence, threats, and gang loyalty maintenance) which it used to swear out a search warrant.

Defendant argued that the means by which the government obtained the probable cause evidence – by viewing content protected by defendant’s Facebook privacy settings – violated defendant’s Fourth Amendment rights. The court denied defendant’s motion to suppress.

It held that where Facebook privacy settings allowed viewership of postings by friends, the Government could access them through a friend/cooperating witness without violating the Fourth Amendment. The court compared the scenario to how a person loses his legitimate expectation of privacy when the government records a phone call with the consent of a cooperating witness who participates in the call. It held that defendant’s legitimate expectation of privacy ended when he disseminated posts to his Facebook friends because those friends were then free to use the information however they wanted, including sharing it with the government.

Photo credit: Flickr user Poster Boy NYC under this Creative Commons license.

January 31, 2012 Privacy

On the radio: Mobile devices and the Fourth Amendment

I was honored to be a guest on this morning’s episode of Oregon Public Broadcasting’s show Listen Out Loud, talking with host Dave Miller about the recent case of Schlossberg v. Solesbee.

Listen to the interview here:
MP3

We talked about the Fourth Amendment and, more specifically, the exceptions to the warrant requirement for searches made incident to lawful arrests. Some courts have given special treatment to mobile devices when considering whether the information contained on them may be searched without a warrant, because of the vast amounts of personal information that is present.

January 23, 2012 Privacy

Supreme Court: GPS device attached to car was an unconstitutional search

U.S. v. Jones, 565 U.S. ___ (2012)

Decision looks to 18th century sensibilities on the sanctity of personal property to resolve modern day legal problem occasioned by technology.

Today the Supreme Court issued its opinion in U.S. v. Jones, which addresses the question of whether it was a “search or seizure” under the Fourth Amendment when the police attached a GPS tracking device to a drug suspect’s car. The information gathered from the device was used to convict defendant and send him to prison for life.

An originalist kind of opinion

Justice Scalia authored an opinion (which four other justices, including Roberts and Thomas, joined) holding that the placement of the GPS device on defendant’s car was a “physical intrusion [which] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Because the device was placed on the car outside the scope of the warrant authorizing it (after the warrant’s expiration and outside its geographic jurisdiction), defendant’s Fourth Amendment rights were violated.

Property is key

Key to Court’s opinion was the Fourth Amendment’s close connection to property. Historically, Fourth Amendment jurisprudence has been tied to the concept of common-law trespass. Later cases, such as Katz v. United States, 389 U.S. 347 (1967) deviated from that approach, looking more to a personal interest, namely one’s “reasonable expectation of privacy.”

Reasonable expectation of privacy does not matter here

The Government had argued that there was no search here because defendant had no reasonable expectation of privacy in the underbody of his car, nor in the information about the public places he went. The court rejected that argument. Instead, it observed that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

This “at bottom” analysis meant looking to the property interest defendant had (as informed by principles of common law trespass). By attaching the device to defendant’s car, the officers encroached on a protected area.

Open questions about information tracking

The case involved more than the mere transmission of electronic signals. In dicta, the court noted that in cases that do not involve physical intrusion, the Katz “reasonable expectation of privacy” analysis would apply. And the court was able to skirt the thorny question of whether the pervasive gathering of information while assisted by technology (something that it would take an army of agents and vehicles to accomplish) would be unconstitutional:

It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

Many commentators have observed that the case bears similarities to United States v. Knotts, 460 U. S. 276 (1982) which involved a location-transmitting “beeper” that was placed in a canister of chloroform, which made its way into the defendant’s trunk. In Knotts, the Court held that the gathering of location information in such a fashion did not violate the Fourth Amendment. The Jones case is different — in Knotts, the cops were not reponsible for placing the canister into the vehicle. Here, the cops actually had to encroach on defendant’s property (and even changed the batteries on the device at a later date).

The Court’s decision comes as a relief to those who worried about the Orwellian-like consequences of a Government victory. It appears that all of us — including the Justices of the Supreme Court themselves — are free from indiscriminate government surveilance of this sort. It will be interesting to go back and watch This Week in Law Episode 137, where we discussed this case and its issues.

What do you think? Was the court correct in looking at 18th century doctrines to solve a 21st century problem? Let’s have a conversation below.

January 22, 2012 Privacy

Cops violated Fourth Amendment in warrantless search of digital camera

Schlossberg v. Solesbee, 2012 WL 141741 (D.Or. January 18, 2012)

Plaintiff was being questioned by defendant police officer when defendant noticed plaintiff was using a digital camera to capture the exchange. The cop got enraged and took the camera away. He arrested plaintiff and looked through the files on the camera without getting a warrant.

So plaintiff filed a civil rights lawsuit. Before trial, the court asked the parties to file briefs on whether plaintiff’s Fourth Amendment rights were violated. The court found that the warrantless search of the camera was an unlawful search incident to an arrest, thereby violating the Fourth Amendment.

In its decision, the court noted that cases which have allowed warrantless searches of electronic devices incident to arrest established a dangerous new rule, namely, that any citizen committing even the most minor arrestable offense is at risk of having his or her most intimate information viewed by an arresting officer. The court recounted the case of some cops who, in a warrantless search of a drunk driving suspect’s cell phone, found and shared some naked photos of the suspect’s girlfriend. See Newhard v. Borders, 649 F.Supp.2d 440 (W.D. Va 2009).

The court disagreed with the rationale of previous cases that held electronic devices such as phones and cameras were like “closed containers” and were thereby subject to warrantless searches. It found that warrantless searches of electronic devices are not reasonable when they are incident to a valid arrest absent a showing that the search is necessary to:

prevent the destruction of evidence
ensure officer safety, or
address other exigent circumstances

The court further found that all electronic devices should be subject to this broad protection — police should not have to distinguish between laptops, traditional cell phones, smart phones and cameras before deciding whether to proceed with a search of the device incident to arrest.

In sum, the court found that because plaintiff had a high expectation of privacy in his camera’s contents, defendant should not have reviewed its contents in a search incident to the arrest. He should have gotten a warrant instead.

So what do you think? Did the court get this one right?