By Mark Newbold, Deputy City Attorney, Police Attorney’s Office, Charlotte-Mecklenburg, North Carolina, Police Department
any of us waited for months for the U.S. Supreme Court to issue its opinion in United States v. Jones, hoping upon hope to receive guidance on the rapidly evolving legal and policy issues related to innovative electronic technologies being reviewed and used by police agencies across the United States. Finally, the highest U.S. court had a case in front of it that could provide a platform for a much-needed legal analysis that might provide law enforcement with some guidance—not just on the use of GPS tracking devices, but also on the use of new surveillance technology in general. Many police agencies already have deployed or are considering deploying devices such as high-tech surveillance cameras, automated license plate readers, facial recognition software, and even unmanned drones.
While Jones was pending, many hoped the court would take the narrow issue presented as a gateway to discus several related legal and policy issues that have arisen as agencies consider just how to deploy these new technologies.
- Will the court provide a new or revised legal standard for protecting an individual’s privacy in a high-technology world?
- How will the court strike a balance between law enforcement’s legitimate need to protect society from large-scale disruption against an individual’s right to be secure in his or her “person, houses, and effects?”
- Will the court recognize that an individual has some right to privacy even in a public place in light of the recent widespread deployment of sophisticated surveillance devices?
- Does the length of time that someone is subjected to electronic monitoring figure into the legal equation of whether a person has been subjected to a search and seizure under the Fourth Amendment?
- Does the prolonged use of electronic surveillance “chill” the right to anonymity and association as protected under the First Amendment?
- Are there constitutional restrictions on the storage and the dissemination of data or upon the linking of databases together?
True, this wish list is too long and is focused on law enforcement’s particular needs. Police legal advisors across the United States eagerly and instantaneously retrieved the case when it became available. Justice Antonin Scalia’s starting point for the discussion of electronic surveillance came from Lord Camden in Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), wherein, according to Scalia, “Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis: ‘[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.’ ”1 Jones stands for the proposition that “the attachment of a global positioning system (GPS) tracking device to an individual’s vehicle, and subsequent use of the device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”2
In Jones, the officers attached a GPS tracking device to the undercarriage of the vehicle used by the suspect in a drug investigation one day after the warrant they had obtained had expired. After Jones was arrested, he moved to suppress the GPS data that were collected for 28 days, arguing that the government needed a valid warrant in place before attaching the device. The government responded that a search did not occur because Jones did not have a “reasonable expectation of privacy” in the area where the device was attached (the outer undercarriage of vehicle parked in an area open to the public) or upon the public roads where the vehicle was tracked. According to the government and numerous appellate courts, there can be no reasonable expectation of privacy for things that are held out open to the public.
Scalia repudiated the government’s reliance on the “reasonable expectation of privacy” test set forth in Katz v. United States.3 Instead, he bypassed Katz and returned to the unvarnished language of the Fourth Amendment, noting that the Fourth Amendment unequivocally protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”4 He then reasoned that as “it is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.” After declaring the vehicle an “effect,” he then concluded that “the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’ ”5
In turning away from Katz’s reasonable expectation of privacy test, Scalia revived and then embraced the eighteenth century concept of common law trespass. The primary historical purpose of the Fourth Amendment, according to Scalia, was to protect the person from the unfettered physical intrusions of governmental agents. A person’s security interest in his or her person, his or her property, and his or her effects is sacrosanct and no one—particularly the government—may physically interfere with that person’s interests.6 Consequently, if the government physically places the tracker on any location of the car without the owner’s consent, then a trespass has occurred. The act of trespassing coupled with electronic monitoring is, according to Scalia, a search under the Fourth Amendment. The person’s reasonable expectation of privacy does not enter into the equation. The primary question is whether a physical intrusion has occurred, not whether a person has a reasonable expectation of privacy to the outer shell of a car. Scalia emphasized that the concept of reasonable expectation of privacy still plays a role in determining whether a search has occurred, but it never replaced the common law trespassory test: “But as we have discussed, the Katz reasonable expectation of privacy test has been added to, not substituted for, the common-law trespassory test.”7
In relying on the eighteenth century theory of common law trespass, Scalia avoided many of the recent constitutional concerns that have arisen with the rapid advancement in various electronic and digital-based technologies, many of which do not involve an actual physical intrusion on or into a person, a place, or an effect.
Scalia’s limited ruling focused primarily on the constitutionality of the attachment of the device to the vehicle. He briefly identified, but unfortunately declined to discuss, several pertinent constitutional concerns related to electronic monitoring.8 Justice Sonia Sotomayor however did not shy away from those issues and recognized the potential for a right to privacy to exist even in a public place:
In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about [their] familial, political, professional, religious, and sexual associations. . . . “Disclosed in GPS data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist; the plastic surgeon; the abortion clinic; the AIDS treatment center; the strip club; the criminal defense attorney; the by-the-hour motel; the union meeting; the mosque, synagogue, or church; the gay bar; and on and on.” The government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”9
In deciding to limit its ruling just to the attachment of the GPS device, the court pushed the unaddressed concerns expressed by the justices back to the agencies that are deploying the device. The fact that the court declined to address the issues does not mean that law enforcement can move forward without taking into consideration the privacy right that society has recognized even if the court has not. For now, it will be the law enforcement agency, not the court, that will have to strike a balance between society’s concern about privacy in a public place and law enforcement’s legitimate need to protect life and property.10
In light of Jones, any agency considering deploying electronic surveillance, monitoring, or identification systems should at a minimum review its protocol or directives. At a minimum, it is recommended that agencies conduct both a First and Fourth Amendment review on their programs. Protected privacy interests not only include Fourth Amendment issues but blend into the First Amendment.11 More likely than not, agencies will identify more questions than when they started, but this is a good thing. Since the Jones court addressed only surveillance that entails a physical trespass on the vehicle, it will be incumbent upon agencies to address these issues internally.
The author recommends that any electronic surveillance, monitoring, or facial identification program be routinely reviewed. The review should start with the First and the Fourth Amendment. The next step is to conduct a review under state law, particularly taking into consideration the agency’s state constitution, which may contain potential protections above and beyond federal protection. Finally, even if the program meets basic constitutional and statutory requirements, there should be an open and transparent public discussion about monitoring and surveillance programs that routinely monitor public areas.
A Model for Fourth Amendment Review
For the remaining programs that do not require a physical trespass, the following Fourth Amendment analysis based on Katz is still recommended by the author. This review is appropriate for surveillance programs that do not entail a physical interference with a person or an effect and include modern high-tech camera surveillance of public areas, automated license plate readers (both fixed and mobile), and facial recognition devices.
There are two analytical steps to the Katz analysis:
- Does the individual have a subjective expectation of privacy?
- Does society recognize this expectation of privacy as reasonable?
Part of this analysis is guided by what has become known as the third-party test. “Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”12
The Katz third-party rule is still alive after Jones. Consequently, the recording of a person’s activity while they are in public does not rise to the level of a search under the Fourth Amendment unless a lower court or a legislative body decides that the plain view exception is an illustration rather than a rule of law. A court could focus on the sophistication of the monitoring systems, their storage capabilities, recent input from the private sector, and scores of scholarly articles that raise the issue of protecting privacy in a public place.13 It is doubtful that a court that follows this approach would require a warrant, but it may require at least some articulation of a suspicion of criminal activity before an individual subject could be scrutinized over a period of time or data can be retained.
A First Amendment review should also be conducted. This review should focus on issues related to deployment of technology during a First Amendment activity such as a protest or a demonstration.
Can the agency articulate a legitimate law enforcement objective that will be benefitted by the use of the device? A legitimate law enforcement objective includes
- the suppression of articulable criminal behavior;
- the need to obtain information during peak travel times to assist in the regulation of pedestrian and vehicle traffic;
- the behavior monitoring of other countergroups to make certain that all can express their views without unnecessary interference;
- preparation and training for largescale events, particularly those with exceptional security concerns; and
- the act of monitoring and collecting information during large-scale events for the purpose of responding to civil damage claims.
An operation plan or general directive should identify certain law enforcement behavior that is prohibited, which at a minimum includes
- monitoring and collecting information about persons participating in First Amendment activities with any device simply because of the content of their speech;
- retaining the identity or likeness of participants in a protected activity unless there is a criminal predicate present; and
- sharing data collected with other agencies unless there is a criminal predicate.14
Is there a mechanism to purge or remove data related to First Amendment activities where the data are unrelated to a legitimate law enforcement objective? Before purging materials, the agency should confirm the material is not related to a criminal prosecution or for the defense of civil claims against the agency.
In conclusion, it is clear that the court in Jones has left many of the legal and policy questions related to high-technology surveillance to another day. By doing so, the court has left law enforcement agencies with much discretion in deployment of the devices in areas open to the public.15 Discretion is power that has the potential to be abused or perceived as being abused. Agencies are cautioned not to ignore the current privacy issues and fears registered by the general public. It would be wise for law enforcement agencies to lead this discussion rather than react to it. Such a discussion will allay fears of an Orwellian police state and assist in maintaining trust within the community. The issue of an individual’s right to some sense of privacy in a public place is not going to disappear simply because the U.S. Supreme Court declined to address it. Law enforcement agencies must address the issue internally and externally. Putting programs into place simply based upon the need to protect the public without conducting an analysis on whether or not the program improperly intrudes on fundamental protections and societal expectations is not prudent. ♦
1United States v. Jones, 132 S. Ct. 945, 949 (U.S. 2012 ), citing Entick v. Carringtion, 95 Eng. Rep. 807, 817.
2Jones, 132 S. Ct. at 948.
3In Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court held that the government violated the Fourth Amendment when it failed to get a search warrant prior to attaching an electronic device to a public telephone booth for the purpose of eavesdropping. The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” The author’s understanding of the rule that has emerged from prior decisions is that there is a twofold requirement; first, a person have exhibited an actual (subjective) expectation of privacy; and second, the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the plain view of outsiders are not protected because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
4“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
5Jones, 132 S. Ct. at 949.
6“Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he tread upon his neighbour’s ground then he must justify it by law.” Jones, 132 S. Ct. at 949, quoting Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765).
7Jones, 132 S. Ct. at 952 (emphasis in the original).
8Jones, 132 S. Ct. at 953–954.
9Jones, 132 S. Ct. at 955–966, (Sotomayor concurring) citing People v. Weaver, 12 N.Y. 3d 433, 44–442; and United States v. Pineda-Moreno, 617 F.3d 1120, 1124 (9th Cir. 2010).
10Another potential response is for Congress or various state legislative bodies to pass legislation to protect individual privacy rights; and Jones, 132 S. Ct. at 964.
11“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, supra [339 U.S. 382 (1950)], at 402: ‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.’ cf. United States v. Rumely, supra [345 U.S. 41 (1952)], at 56–58 (concurring opinion).” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958).
12Katz v. United States, 389 U.S. 347, 361 (U.S. 1967)
13The concern is that a court displeased with Jones’ limited ruling will take it upon itself to transfer the intrusiveness of indiscriminate monitoring, surveillance, and facial recognition and convert that into a protected privacy interest even though the person may be in a public area. See Jones v. Houston Cmty. College Sys., 816 F. Supp. 2d 418 (S.D. Tex. 2011), where the court discusses in general terms the offensive nature of the indiscriminate monitoring of persons. In United States v. Cuevas-Sanchez, 821 F.2d 248, 250–51 (5th Cir. 1987), the government placed a video camera on a power pole overlooking the defendant’s 10-foot-high fence, allowing the government to monitor all activity in the defendant’s backyard. The Fifth Circuit held that because the defendant had a reasonable expectation of privacy in his backyard, the video surveillance “qualif[ied] as a search.” (Id. at 251.) The court’s conclusion was based, in part, on the intrusiveness of video surveillance. As the court explained, “[t]his type of surveillance provokes an immediate visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state.” (Id.) By 2004, other courts had also recognized the particular intrusiveness of video surveillance. See, for example, United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 551 (9th Cir. 1992) (Kozinski, J., concurring); United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991); United States v. Mesa-Rincon, 911 F.2d 1433, 1443 (10th Cir. 1990); and United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984).
14See U.S. Department of Justice, Global Justice Information Sharing Initiative, Recommendations for First Amendment–Protected Events for State and Local Law Enforcement Agencies (December 2011), http://it.ojp.gov/documents/First_Amendment_Guidance.pdf (accessed April 19, 2012).
15Perhaps that is exactly what Justice Scalia intended.
Please cite as:
Mark Newbold, "The Lingering Privacy Concerns on High-Tech Surveillance and Monitoring of the Public," The Police Chief 79 (June 2012): 54–58.