Courts in growing confusion over site surveillance


When the Supreme Court of the United States decided Carpenter v. United States Three years ago, deciding that the Constitution requires a warrant when law enforcement searches for information on the historical locations of cell sites, the opinion was widely greeted as a turning point – one that not only worked a but a whole “series of revolutions in Fourth Amendment law”, as Georgetown law professor Paul Ohm Put the. But as two recent decisions of appellate courts show, there remains considerable uncertainty as to what, exactly, Carpenter is meant to mean, and whether the Constitution provides meaningful safeguards against other forms of location monitoring.

The Rapporteurs Committee has weighed in on these debates – first in a court friend memory in Carpenter itself, more recently in a Case of the first circuit That we have discussed in this bulletin – because location tracking can weigh on important First Amendment interests. If there were no constitutional limits to the government’s ability to digitally follow journalists to source meetings, for example, the obvious effect would be to curb confidential contact with the press. But the lower courts, afterCarpenter, have taken very different approaches to implement the recognition of this decision that such surveillance can reveal not only the “particular movements of a person, but through them, his / her family, political, professional, religious and sexual associations. “.

On the “Carpenter worked a revolution ‘side of the fracture is the June of the fourth circuit decision in The leaders of a fine fight against the Baltimore Police Department, a challenge to Baltimore’s now defunct aerial surveillance program. There the Fourth Circuit – on vigorous dissent – read Carpenter This means that a surveillance system that in practice “opens an intimate window into a person’s associations” involves the Fourth Amendment, even if the coverage of the system does not allow “perfect tracking”. And it did so despite a Supreme Court precedent upholding short-term aerial surveillance instances against a constitutional challenge.

By comparison, the Seventh Circuit decision last month in United States v. Tuggle offers a stingier account of what Carpenter intended for Fourth Amendment rights. In dismissing the argument that 18 months of 24-hour camera surveillance of the accused’s home should have required a warrant, the court acknowledged that the surveillance captured “a significant slice of Tuggle’s life,” but refused to conclude that anything less than a “comprehensive picture of his every move” triggered Carpenter‘s concerns. In fact, the court insisted: “Until the Supreme Court or Congress decides otherwise, we will read Carpenter limited to unique features of the story [cell-site location information] involved there.

We think this result is unreasonable, as we explained in our brief to the First Circuit – the next appeals court likely to weigh in on the matter. But whatever the case, CarpenterReceipt of so far makes it clear that unless Congress or the Supreme Court is clear on the matter, the courts will continue to be divided in their drive to expand. Carpenter beyond its facts.

We will continue to monitor these issues as they evolve.

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The Journalists’ Committee for Press Freedom’s Technology and Press Freedom project uses integrated advocacy – combining law, policy analysis and public education – to defend and promote press rights on issues. issues at the intersection of technology and press freedom, such as journalists. -protections of the confidentiality of sources, the law and policy of electronic surveillance and the regulation of content online and in other media. TPFP is headed by Committee of Journalists lawyer Gabe Rottman. He works with Grayson Clary, Legal Officer for National Security and Free Press for the Stanton Foundation and with Mailyn Fidler, Legal Officer for the Technology and Press Freedom Project.

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