On May 10, 2023, the ACLU of Kansas and the ACLU of Colorado, the ACLU, the Brennan Center for Justice, the Center for Democracy & Technology, and the Electronic Privacy Information Center filed an amicus brief in United States v. Hay before the U.S. Court of Appeals for the 10th Circuit challenging the government’s use of a sophisticated pole camera aimed at a home to surveil everyone who came and went for nearly ten weeks. In the case, police officers could watch the camera’s feed in real time (or later, at their leisure) from the station, and could remotely pan, tilt, and zoom close enough to read license plates or detect what someone was carrying into or out of the house. From this, law enforcement could learn a great deal of sensitive information about their target’s activities and associations. Yet the government did all of this without a warrant.
Conducting warrantless long-term, continuous surveillance of a person’s home with a pole camera violates the Fourth Amendment right to be secure in our homes against unreasonable searches, and authorizing this kind of surveillance would disparately impact people who have the fewest economic resources to protect themselves from surveillance.
The parties signing the amicus brief argue that the district court erred in concluding that the government’s use of a pole camera to observe a home for ten weeks did not amount to a Fourth Amendment search. Long-term technological surveillance that allows the government to monitor and record who and what is entering a home invades a reasonable expectation of privacy. Simply put, people do not expect that their home and its curtilage, or surrounding vicinity, which are considered sacred spaces under the Fourth Amendment, will be under constant, unblinking surveillance. Over time, pole cameras trained on a home and its curtilage can reveal deeply sensitive information about a person, including the identities of the person’s guests and visitors; whether someone other than their spouse visited at night (and how frequently); whether they regularly leave their home with a protest sign or a prayer shawl; and, depending on the camera’s zoom capabilities, potentially whether they are holding documents such as medical bills or ballots. As compared to traditional police capabilities, the ability to set up an unattended camera and essentially look backward in time at thousands of hours of historical footage fundamentally alters the nature of the privacy invasion and upsets the longstanding balance between privacy and police authority.
The amici call on the Court to reverse the district court's error.