from the FBI-or-privacy-you-can't-have-both dept.
First Circuit Court of Appeals Upholds Eight Months of Warrantless 24/7 Video Surveillance:
A federal appellate court in Massachusetts has issued a ruling that effectively allows federal agents in Puerto Rico and most of New England to secretly watch and videorecord all activity in front of anyone's home 24 hours a day, for as long as they want—and all without a warrant. This case, United States v. Moore-Bush, conflicts with a ruling from Massachusetts's highest court, which held in 2020 in Commonwealth v. Mora that the Massachusetts constitution requires a warrant for the same surveillance.
In Moore-Bush, federal investigators mounted a high-definition, remotely-controlled surveillance camera on a utility pole facing the home where Nia Moore-Bush lived with her mother. The camera allowed investigators to surveil their residence twenty-four hours a day for eight months, zoom in on faces and license plates within the camera's view, and replay the footage at a later date.
In a deeply fractured opinion, the First Circuit Court of Appeals ultimately allowed the government to use the footage in this case, overturning an earlier trial court ruling that would have suppressed the evidence.
EFF joined the ACLU and the Center for Democracy & Technology in an amicus brief at the First Circuit's rehearing en banc (where all the active judges in the circuit rehear the case),. We argued that modern pole camera surveillance represents a radical transformation of the police's ability to monitor suspects and goes far beyond anything that could have been contemplated by the drafters of the Fourth Amendment. Pole cameras allow police to cheaply and secretly surveil a suspect continuously for months on end, to zoom in on phone screens or documents, and to create a perfect record that can be searched and reviewed at any time in the future. None of these capabilities would be possible with a traditional stakeout. Finally, we urged the judges to consider the equity implications of finding that a person has no reasonable expectation of privacy as to activities in their exposed front yard, as this would grant greater Fourth Amendment protection to homeowners with the resources to erect high fences or hedges than to renters or those without the means to build such protections.
The government argued in Moore-Bush that a 2009 First Circuit case called United States v. Bucci governed the outcome in this case because it upheld similar pole camera surveillance. The trial court distinguished Bucci, finding the Supreme Court's landmark 2018 holding in Carpenter v. United States, effectively changed the game. Like the cell site location information at issue in Carpenter, the trial court held long-term, comprehensive, continuous video surveillance of the front of a person's home violates their reasonable expectation of privacy. Given this, the trial court suppressed the pole camera evidence.
[Ed's Comment: That is NOT the end result - please continue reading. (Added 30-06-2022 06:18 UTC. JR)]
[...] Barron wrote that, although each of the moments captured by the pole camera could have been viewed by a casual passerby, Moore-Bush had chosen to live on a quiet street where she would never have expected to be meticulously observed for eight months. He combined this subjective prong with the objective reasonableness analysis from Carpenter, which held that even if an individual action is public, the comprehensive compilation of such public actions over time becomes unreasonable––sometimes called the "mosaic theory." In a nod to the equity argument we raised in our amicus brief, Barron wrote that combining the subjective and objective analysis allows the court to ensure that people who more clearly manifest an expectation of privacy are not granted greater Fourth Amendment protections than those who cannot do so.
Barron also recognized that today's advanced surveillance technology makes it possible to "effectively and perfectly capture all that visibly occurs in front of a person's home over the course of month," something that would have been virtually impossible with a pre-digital, traditional stake-out. The concurring opinion noted that videosurveillance technology is evolving rapidly, and the court should keep in mind the "advent of smaller and cheaper cameras with expansive memories and the emergence of facial recognition technology." Further, pole camera surveillance of a home is an especially egregious Fourth Amendment violation, as it allows police to record and review in detail many months of highly personal moments. Ultimately, Barron's concurring opinion found that the comprehensive nature, ease of access, and retrospective quality of pole camera footage contravened a reasonable expectation of privacy, and thus violated the Fourth Amendment. Going forward, Barron advocated that Bucci should be overruled, given Carpenter. But, with an evenly split court, Bucci remains good law in the First Circuit.
The other three First Circuit judges sharply disagreed with the Barron concurrence. They joined a separate opinion authored by Judge Lynch, finding pole cameras were no different from "conventional surveillance [] tools" like private security cameras. This is significant because Carpenter explicitly stated it did not apply to these tools. Lynch dismissed the fact that pole cameras are different from traditional security cameras because they are higher definition, equipped with much greater storage capacity, and can be controlled remotely. Lynch argued that this is a mere "sharpening" of a conventional tool.
[...] The First Circuit's ruling in Moore-Bush leaves intact the court's earlier precedent in U.S. v. Bucci. However, given the judges were evenly split in their reasoning, there is some room for hope that Bucci could be overruled in the future.
(Score: 2, Interesting) by Anonymous Coward on Thursday June 30 2022, @05:36AM
The real mass unwarranted surveillance never gets this much publicity. Every once in a blue moon, it leaks out. It's a cockroach. There are 500 more behind the wall.
(Score: 2) by JoeMerchant on Thursday June 30 2022, @01:12PM (4 children)
Want your privacy without having to keep the shades drawn 24-7? How about e-glass that can switch from frosted to clear with a tiny current?
Really, this should be standard on all new construction. My first home had 4 pane awning windows that came down below waist level. Previous owners, sensibly IMO, installed frosted glass in the bottom two panes of all street and neighbor facing windows.
Pole cameras would have "gotten above" the frosted privacy, but if your e-glass is 100% frosted by default and you just switch it clear when you want the view (and have nothing to hide exposed) then there we are.
Of course: TIATA - transparency is always the answer. We shouldn't have to jealously guard our privacy in the first place. Most things that you keep private today because they are illegal should be legal in the first place. If they clearly should be illegal, you shouldn't be able to hide behind privacy screens to get away with them.
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(Score: 2, Touché) by shrewdsheep on Thursday June 30 2022, @02:32PM (3 children)
This seems to be a very optimistic world view. What should be the magic device that makes everything illegal apparent to everyone and keeps all things else private?
I also believe the discussion is much broader than just lawfulness. I just want certain things to be private and remain private. If you are only concerned with lawfulness, you should be willing to hand your cell phone to any stranger passing by to look through your stuff and sharing it with the world.
(Score: 3, Informative) by JoeMerchant on Thursday June 30 2022, @04:07PM (2 children)
>If you are only concerned with lawfulness
In theory, the officers of the law should be only concerned with lawfulness. Of course, when they can't prove anything illegal they'll grasp at whatever levers of power they have access to, legal or not on their part in many cases.
The frosted glass would be for simple privacy of things legal, but not desired to be shared - and there's no magic device that will prevent them from screening illegal activity as well.
In the complaint, the "observed" never expected officers of the law to be zooming in on documents left on a desk, etc. In the ideal world, the officers of the law would either find something illegal on those documents and prosecute, or not and erase all images recorded within a very short time period, never sharing them anywhere - with a record to file stating something on the order of: "documents open on desk observed on such and such date, no actionable content found." We, of course, live very very far from such a world. But, in such an ideal world, when no actionable content is found, all other observations would remain private - not recorded or shared beyond the bare minimum set of people required to determine if the observations are actionable - and the observed should be reasonably uninjured by the inspection, unless they did indeed leave "actionable content" in an observable location.
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(Score: 3, Insightful) by Common Joe on Saturday July 02 2022, @09:37AM (1 child)
With programming, I may think in terms of what is ideal, but when it comes to the real world, I never think that way.
With modern cameras, it's possible to trace heat signatures after people enter the house and watch the actions of what they do. But hey, the heat is coming outside into the public, right? Sure, they aren't admitting to using cameras right now, but I predict we'll eventually hear about it. Call me paranoid, but after Snowden's revelations from years ago and the story above, I'm convinced it's already happening.
AC smacked right on the head above: "The real mass unwarranted surveillance never gets this much publicity. Every once in a blue moon, it leaks out. It's a cockroach. There are 500 more behind the wall." What aren't we hearing about is one of the big questions I have.
It won't be long before they will see all sorts of illegal things inside of house, and then arrest people according to some political whim. After Roe vs Wade being overturned, it's pretty clear things are going to get ugly for the LGBT community. It was less than 20 years ago when same-sex sexual intercourse was finally made legal in all states [wikipedia.org]. That's not same sex marriage... I mean sex. Same sex laws in North Carolina came about in 2014 [wikipedia.org]. There are other ridiculous things still on the books. For instance, a person can't own more than 6 dildos in Texas [wikipedia.org].
It's no longer a big step to start enforcing some of the laws that already exist.
(Score: 2) by JoeMerchant on Saturday July 02 2022, @11:32AM
In 2003 I saw a billboard in Galveston proclaiming that homosexuality was a choice and that practitioners could be cured, with contact info for the unfortunate souls who identified with the overweight self conscious and queer looking young man in western wear on the sign to call or email.
The 2016 election and years following was a "coming out party" for a lot of pent up, long suppressed xenophobia and hate. It seemed like those "coming out" with their retrograde expressions of racism, sexism, etc. culminating in Jan 6 believed that their time had returned and they were again protected by the government to practice their persecutions. I sincerely hope that just as draft dodgers and bra burners were put on watch lists in those days, we have heightened surveillance of our recent revolutionaries. They are entitled to their opinions, and to voice them in public, and to elect representatives to government. Tactics like violent counterprotests, illegal executive (police) actions, and legislation that is "tired of the separation of Church and State" and similar measures are short cuts that should not be tolerated.
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