Friday, November 30, 2012

Ninth Circuit Gives the A-OK For Warrantless Home Video Surveillance

Hanni Fahkoury
EFF

Can law enforcement enter your house and use a secret video camera to record the intimate details inside? On Tuesday, the Ninth Circuit Court of Appeals unfortunately answered that question with "yes."

U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwah's house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwah moved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Court's January 2012 decision in United States v. Jones -- which held that law enforcement's installation of a GPS device onto a car was a "search" under the Fourth Amendment -- and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy.

In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human mind's tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwah's house.

Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he "voluntarily" revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Court's decision in Jones, but also earlier Ninth Circuit caselaw as well.


In Jones, the Supreme Court made clear that a law enforcement trespass onto private property for the purpose of obtaining information was a "search" under the Fourth Amendment. Under common law, a defendant was not liable for trespass if their entry was authorized. But the Ninth Circuit previously made clear in Theofel v. Farey-Jones that a person's consent to a trespass is ineffective if they're "mistaken as to the nature and quality of the invasion intended." In fact, Theofel cited another Ninth Circuit case where the court found a "police officer who, invited into a home, conceals a recording device for the media" to be a trespasser.

What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah "mistaken as to the nature and quality" of the home visit, the government trespassed onto Wahchumwah's property. Since that trespass was done for the purpose of obtaining information -- to get evidence of bald and gold eagle feather and pelt sales -- the government "searched" Wahchumwah's home. And it needed a warrant to do that; without one, the search was unconstitutional.

Its troubling that the Ninth Circuit did not see it this way (nor are they the only one). Because the sad truth is that as technology continues to advance, surveillance becomes "voluntary" only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And we're entering an age where criminal suspicions is no longer even necessary. Whether you're calling a friend's stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using license plate scanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come.

The only way to avoid pervasive law enforcement monitoring shouldn't be to make the choice to live under a rock in the wilderness somewhere. Instead, the Fourth Amendment means today what it meant in 1787: that the "right of the people to be secure in their persons, houses, papers, and effects" shouldn't be violated unless the government comes back with a warrant.

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7 comments:

Anonymous said...

Hmmm

Once more for those who are unsure about this case. The court is attempting to turn the law into a pretzel and ignore the Constitution completely. The government must also discribe exactly what it is they are searching for. The reason for this is so that the government cannot use search warrants for fishing expeditions (which they do every day). Wake up people; every single member of this court that ruled in favor of this action has committed treason. They should be immediately impeached and put in jail.


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.
"

Anonymous said...

These days you should not trust anyone you do not know, there are little govn't sniches everywhere and its all about power,control and stealng our money.

Anonymous said...

Anything gov workers can do without a warrant corporations can also do to the citizens. Corporate spying on citizens is what is making news in England right now. Our fear of being set up by corporate efforts like being mailed a package of dope or being rear ended and have to spend months and thousands in court. This ensnares whomever they target.

Anonymous said...

Heil.

Anonymous said...

Lots of brave men died for nothing...These traitors have to be made to look in the mirror at what they really are..God help us,the 4th reich is upon us..

Lowenstein said...

All goy must be watched 24 hours a day. We are almost there.

Anonymous said...

Tele-screens!

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