Brennan Center Brief Says Police Must Get Warrant for Long-Term, Covert Home Surveillance

Today, a diverse coalition of civil liberties groups and privacy advocates filed an amicus brief to the U.S. Court of Appeals for the Sixth Circuit in U.S. v. Houston, arguing that police must secure a warrant to engage in long-term, covert video surveillance of a home. The Brennan Center for Justice filed the brief on behalf of the National Association of Criminal Defense Lawyers (NACDL), itself, and former U.S. Rep. Bob Barr (R-Ga.), and was joined by the ACLU, the ACLU of Tennessee, the Electronic Frontier Foundation, and the Libertarian National Committee.

The case involves a Tennessee man named Rocky Joe Houston, who was arrested in 2013 following an investigation in which the Bureau of Alcohol, Tobacco, Firearms, and Explosives installed a video camera without a warrant on a public utility pole overlooking Houston’s private property and used it to surveil him for 10 weeks. Houston argues this was a violation of his Fourth Amendment rights.

In early February, a three-judge panel from the Sixth Circuit ruled against Mr. Houston. One of the judges agreed that the surveillance violated his constitutional rights, but would have upheld the conviction nevertheless. The Center’s brief supports his petition for the full Sixth Circuit to re-hear his case “en banc,” arguing that the original panel failed to account for the realities of technology while being fundamentally at odds with multiple Supreme Court and lower court precedents.

“Ten-week warrantless video surveillance of private property involves a degree of intrusion that a reasonable person would not, and should not, expect to encounter,” said Rachel Levinson-Waldman, senior counsel in the Brennan Center’s Liberty & National Security Program. “Extended surveillance of this kind allows the government to see a detailed picture of the subject’s everyday life that would never be exposed to a passer-by on public streets. It is clear that a warrant should be required.”

“The Supreme Court has repeatedly cautioned courts against blindly extending old rules to powerful new technologies, including cell phones, GPS trackers, and thermal imaging devices,” said Michael Price, counsel in the Brennan Center’s LNS Program. “The Sixth Circuit should grant rehearing to ensure that advances in technology do not erode Fourth Amendment privacy rights.”

“For the court to treat the installation of a high proficiency camera to spy on an individual’s private residential property as though it were analogous to what the average person could see walking down the street or even what a surveillance team could observe is like comparing a child’s remote controlled car to a Ferrari,” said NACDL President E.G. “Gerry” Morris. “By saying the camera only captured what was available to the naked eye, the court attempts to create a legal fiction that masks the true danger of modern technology to bedrock Fourth Amendment protections.”

Read the full amicus brief from the Brennan Center for Justice at NYU School of Law, National Association of Criminal Defense Lawyers, ACLU, ACLU of Tennessee, Electronic Frontier Foundation, Libertarian National Committee, and the Honorable Bob Barr.

View the Brennan Center’s case page for U.S. v. Houston.

Read more about the Brennan Center’s work on Liberty & National Security.

For more information or to schedule an interview, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.