The U.S. Supreme Court [Monday] declined to hear Moore v. United States, leaving in place a patchwork of lower court decisions on an important and recurring question about privacy rights in the face of advancing surveillance technology. In this case, police secretly attached a small camera to a utility pole, using it to surveil a Massachusetts home 24/7 for eight months — all without a warrant. Law enforcement could watch the camera’s feed in real time, and remotely pan, tilt, and zoom close enough to read license plates and see faces. They could also review a searchable, digitized record of this footage at their convenience. The camera captured every coming and going of the home’s residents and their guests over eight months. As a result, the government targeted the home of a community pillar — a lawyer, respected judicial clerk, devoted church member, and a grandmother raising her grandkids — to cherry-pick images from months of unceasing surveillance in an effort to support unwarranted criminal charges against an innocent person.
Federal courts of appeals and state supreme courts have divided on the question of whether such sweeping surveillance is a Fourth Amendment search requiring a warrant. The highest courts of Massachusetts, Colorado, and South Dakota have held that long-term pole camera surveillance of someone’s home requires a warrant. In Moore v. United States, the members of the full en banc U.S. Court of Appeals for the First Circuit split evenly on the question, with three judges explaining that a warrant is required, and three judges expressing the belief that the Fourth Amendment imposes no limit on this invasive surveillance. This issue will continue to arise in the lower courts; the ACLU filed an amicus brief on the question in the U.S. Court of Appeals for the Tenth Circuit earlier this month.