Last week, the U.S. Supreme Court declined to hear a case brought by an Army veteran in Kansas who was convicted of stealing government property by fraudulently receiving disability benefits. The core question in the case was whether federal investigators violated Bruce Hay’s Fourth Amendment protections against unlawful search by installing a hidden camera across from his house that recorded every movement on his property for 68 days.
The court’s decision to pass on the case, United States v. Hay, frustrated civil liberties advocates, who have been trying for years to get a precedent-setting ruling that would require police to obtain a warrant before subjecting people to prolonged video surveillance of their homes by so-called pole cameras.
The need for such protections is growing more urgent, the ACLU and legal scholars say, as cities build out real-time crime centers that can simultaneously monitor thousands of government and privately owned surveillance cameras at will and as a new presidential administration takes power with promises to investigate and prosecute political opponents.
“In a world where we have an administration that wants to target undocumented people, or journalists, or dissenting voices, what the federal circuit [courts] have said is that there’s no problem with the FBI or anyone else putting cameras outside everyone’s homes without a warrant, without a reason, and just watching,” said Andrew Ferguson, an American University law professor and expert on police surveillance. “It’s not just about watching anymore, it’s about object recognition … it’s about facial recognition. I don’t think the federal courts have really grappled with that change”
This is the third time since 2022 that the Supreme Court has declined to weigh in on pole cameras following a string of cases in which federal and state judges have grappled with the issue and come to different conclusions.
In South Dakota and Massachusetts, the states’ highest courts have ruled that installing a pole camera to watch an individual’s home for long periods of time constitutes a search of their property and therefore requires probable cause and a warrant. The Colorado Supreme Court has ruled similarly, although that case came with the caveat that police used a pole camera to watch a property that was surrounded by a privacy fence and not open to public view.
But in most states, or when a federal law enforcement agency installs a camera, a different set of rules apply.
The 10th Circuit Court of Appeals, which heard the Hay case, affirmed a lower court’s ruling that because the pole camera installed by police only captured activities outside the defendant’s house that occurred in public view the surveillance didn’t constitute a search under the Fourth Amendment.
In a case out of Massachusetts, United States v. Moore-Bush, two years after the state’s supreme court decision on pole cameras, a six-judge panel of the 1st Circuit Court of Appeals split 3-3 on whether a pole camera that the Bureau of Alcohol, Tobacco, Firearms and Explosives installed for eight months outside the defendant’s house constituted a search requiring a warrant. The tie meant that the lower district court’s decision, finding that the camera was not a search, stood.
And in 2021 the 7th Circuit Court of Appeals affirmed a lower court’s decision in United States v. Tuggle that a pole camera installed to watch the defendant’s home for 18 months did not require a warrant.
The U.S. Supreme Court turned down requests to consider the Moore-Bush and Tuggle cases despite the 1st Circuit judges’ split and the 7th Circuit’s seemingly reluctant decision in Tuggle, where the judges wrote that they were “bound by Supreme Court precedent” that “as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.”
A number of civil liberties groups, including the ACLU, Electronic Privacy Information Center, Center for Democracy & Technology, and the Brennan Center for Justice petitioned the Supreme Court to take up the Hays case.
“It’s an issue where judges in the lower courts are really seeking guidance, where the public now has protections based completely on where they live and whether it’s federal or state law enforcement installing the pole camera,” said Nate Wessler, deputy director of the ACLU’s Speech, Privacy, and Technology Project. “It’s not really sustainable and it’s something the Supreme Court will have to weigh in on eventually.”
With a six-judge conservative majority, the current Supreme Court isn’t the friendliest venue for civil rights advocates. But some court watchers think that persistent surveillance cases are one area where a conservative-leaning court might side with groups like the ACLU.
“This is one of the most pressing Fourth Amendment issues and the Supreme Court, at least in recent history, has seemed to be a little more pro-Fourth Amendment, pro-privacy than the circuit courts,” said Matthew Tokson, a University of Utah law professor. While he wished the court had taken up Hays, he added “I absolutely would be worried that they might get it wrong.”
The Supreme Court hasn’t decided a significant Fourth Amendment search case since 2018’s Carpenter v. United States, in which the court ruled 5-4 that the FBI conducted an illegal, warrantless search when it obtained location data from defendant Timothy Carpenter’s cell phone provider that allowed the government to track his movements across 127 days.
In his opinion for the majority, Chief Justice John Roberts wrote that “a person does not surrender all Fourth Amendment protection by venturing into the public sphere” and that cell phone location data is particularly intrusive because it captures a person’s movements over a long period of time and is retained for years, making it possible for police to quickly and cheaply track a person’s historic movements through public places in ways that would be impossible for officers to replicate by staking out and following a suspect.
Legal scholars say police pole cameras present similar problems and an eventual Supreme Court decision could be guided by Carpenter’s precedent. While the cameras generally capture activity that happens in the public sphere, for example, a person’s front yard, they often operate around the clock for months and the recorded footage may be retained indefinitely.
And as the court has passed on pole camera cases, a new generation of surveillance companies has begun supplying police with cameras that use AI to read license plates and recognize faces and that can be accessed by departments in other jurisdictions, creating automated pole camera networks that can track people not just in their front yard but as they move through an entire region.
The current technology allows for significantly more effective and intrusive surveillance than police or a nosy neighbor could achieve on their own, Ferguson said. “You are building a dossier about somebody’s life; when they leave, when they come home, who they come home with. That information is at a different scale and capacity than what a human officer or team of human officers would really be able to do.”
