The U.S. Supreme Court should grant review in Moore v. United States, a case loaded with unintended consequences for digital as well as physical privacy but one clouded by a 3-3 deadlock in the First Circuit Court of Appeals.
The case involves the suspicion by the Bureau of Alcohol, Tobacco and Firearms (ATF) that Nia Moore-Bush was using the home of her mother, Daphne, to sell narcotics and firearms. Without seeking a warrant, ATF placed a video camera on a utility pole across the street from her house. Agents could control the camera, allowing them to see (both live and in recordings) the facial expressions of visitors, details of their clothing, small objects in their hands, and the license plate numbers of cars parked in the home’s driveway.
And so the ATF agents watched and waited… watched and waited… for eight months… until they obtained the purported evidence they were hoping for.
The presence of a neighbor’s Ring camera across the street would be problematic enough. But the installation of a persistent watch over a house by the police necessarily involves the Fourth Amendment at its core.
Three judges on the First Circuit believed this persistent surveillance violated the Fourth Amendment. Three did not. The three who saw a violation rested their case on Justice Harlan’s test of whether an activity violated a “reasonable expectation of privacy.” In its amicus brief, the Cato Institute criticized Justice Harlan’s test as circular, one that requires judges to “use their own views or best estimations about privacy,” which in turn “guide societal expectations.”
Cato presented a clearer standard, calling on the Court to “hew more closely to the actual text of the Fourth Amendment in determining whether government action amounts to a constitutionally cognizable search […] And here, the highly directed and persistent observation of Moore at her home is a ‘search’ for evidence against her in the natural sense of the term.” Cato also noted that the Supreme Court has repeatedly emphasized that “the home is first among equals. At the [Fourth] Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”
But what about the actual act of “retreating?” The ATF’s intrusion brings into play the idea of “curtilage” – how far out from the door does the heightened protection of one’s home extend? The Supreme Court had found in June 2021 in Lange v. California that a Fourth Amendment violation had occurred when a police officer put his foot under a closing garage door sensor to force a door open to chase a misdemeanant.
What PPSA told the Court in our Lange brief applies here:
While the protections for electronic devices and communications remain under development, it is unlikely that courts would give such information sources more protection than the home. Accordingly, if the Court were to create a categorical misdemeanor exigency rule applicable to home entry, that rule would inexorably be extended to warrantless entry into electronic sources of information, posing an even more pernicious and extensive threat to privacy and its Fourth Amendment protections.
For example, today’s smartphones and other devices contain information detailing every aspect of a person’s life: messages to family, identifying documents, intimate pictures, personal journals, health information, financial data, and more are likely to be found on a device that the government has the technical ability to search remotely.
The Supreme Court can help curtail the many threats to Americans’ privacy – including digital privacy – by upholding the principle that intrusive, persistent surveillance always requires a probable cause warrant. Moore offers the Court a good opportunity to do just that.