The Supreme Court’s Jones Decision and its effect on video surveillance networks
Alan F. Wohlstetter (left)
By Alan F. Wohlstetter, Esq. and Sekou Campbell, Esq.
For those interested in the balance between public safety and an individual’s reasonable expectation of privacy, the U.S. Supreme Court’s unanimous decision in United States vs. Jones (decided January 23, 2012) provides guidance regarding video surveillance. For those with nightmares about George Orwell’s novel “1984” with Big Brother watching, the Jones decision may lead to more sleepless nights. While it did find the use of a GPS to track a drug suspect for 28 days unconstitutional, it eloquently acknowledged the role of video surveillance cameras in a society where technology is re-defining what one can reasonable expect to be “private”.
Background -- Although the Justices agreed on the outcome in Jones, they have articulated three separate rationales for such a result. The facts in Jones are then crucial to understanding the areas of unanimous agreement among the Justices. Antoine Jones, owner of a night club in Washington, DC, was suspected by the Metropolitan Police Department of trafficking in narcotics. The Police obtained a warrant authorizing the attachment of an electronic tracking device (“GPS”) to Jones’ wife’s car, but the warrant expired in 10 days. The GPS was attached on the 11th day.
For the next 28 days, the police tracked Jones’ wife’s car, and relayed more than 2,000 pages of data. Ultimately, a multi-count indictment was brought against Jones, charging him with conspiracy to distribute five kilograms of cocaine. The District Court admitted the data obtained from the GPS since “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The D.C. Circuit reversed, and the government appealed the decision to the Supreme Court.
The Majority Opinion -- The Majority Opinion, written by Justice Scalia, and joined by Chief Justice Roberts, and Justices Kennedy, Thomas and Sotomayor, sets forth a simple rule: government trespass on a person’s “effects” without a warrant or probable cause constitutes an unreasonable search. The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Majority Opinion 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’.” Without a valid warrant, the search was unreasonable. A key finding was the Majority Opinion’s determination that in attaching a GPS to a car, “the Government physically occupied private property for the purpose of obtaining information.” And to Justice Scalia’s delight, the basis for positing property rights in search-and-seizure cases harkens back over 350 years to Entick v. Carrington:
“[O]ur law holds the property of every man so sacred, that no man can set 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 neighbours’s ground, he must justify it by law.”
The Alito Opinion -- The opinion penned by Justice Alito and joined by Justices Ginsburg, Breyer and Kagan agreed with the majority that tracking via GPS for 28 days was an unreasonable search, but based that conclusion on the Katz “reasonable expectation of privacy” test. The Alito Opinion determined that “an actual trespass is neither necessary nor sufficient to establish a constitutional violation,” citing U. S. v. Karo. The Katz “reasonable expectation of privacy” test was violated when Jones’ wife’s car was tracked for 28 days. The Alito Opinion concluded, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.” So for different reasons, all nine Justices agreed that use of the GPS to track a suspect for 28 days was an unconstitutional search.
Application to video surveillance -- To the discerning eye, the Justices are just as unanimous in their endorsement of the constitutionality of video surveillance networks consistent with Katz. The Majority Opinion notes, “Situations involving merely the transmission of electronic signals without trespass would remain subject to the Katz analysis.” In fact, a camera focused on the front door of Jones’ night club for an extended period drew no objection from any of the Justices!
The Alito Opinion determined that trespass is not required for there to be an unconstitutional search, and that the Katz standard is the only requirement:
“[t]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy that the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.”
The Alito Opinion went on to note that “closed-circuit television video monitoring is becoming ubiquitous” and likewise found the Catch-22 quality of the Katz standard noteworthy: “The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.” In other words, if a city has a video surveillance network and has prominently posted signs throughout the city proclaiming, “Public areas subject to Video Surveillance. Cameras not continuously monitored,” the city may have successfully altered the “reasonable expectation of privacy” under Katz of city residents and visitors. It is the shifting trends in technology and public acceptance of it that provides the challenge in applying Katz to video surveillance networks in the future:
“[T]he Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations…. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”
What Lies Ahead? -- The final word is from Justice Sotomayer, who authored her own opinion for purposes of concurring with the Majority Opinion, though disagreeing with their “trespass” requirement: “[T]he same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz analysis by shaping the evolution of societal privacy expectations.” So while video surveillance with appropriate signs should satisfy Katz, it is not clear whether facial-recognition technology on every street corner would.
Alan Wohlstetter heads the Infrastructure Practice Group at Fox Rothschild, specializing in video surveillance and public-private partnerships. He can be reached at:
Sekou Campbell is an associate in the Infrastructure Practice Group at Fox Rothschild, with a focus on copyright infringement, white-collar crime and products liability. He can be reached at: