Week 6 Take Aways

In this week’s recent development we discussed the recent Sixth Circuit decision in US v. Houston. The panel held that putting a video camera on a utility pole and capturing 10 weeks of video of what was happening on a suspect’s private property was not a search under the Fourth Amendment. The majority emphasized that the camera was on public property and that it had the same effect of putting an officer in the same location. The fact that ATF was being more efficient by using a camera rather than staking out officers did not mean that it was now a search under the Fourth Amendment. We discussed some of the differences in having an officer stake out the location versus having the camera, such as the lesser visibility of the camera. Another point that was raised was the fact that this surveillance went on for 10 weeks. Based on rationale used by Justice Alito in his US v. Jones concurring opinion, the fact that a GPS tracker was used for 30 days supported the conclusion that it was a search. The application of that rationale in this case would seem to support the finding that the use of the camera for 10 weeks was a search.

Another current event that we briefly discussed was the recent order by a magistrate judge ordering Apple to help the FBI break the encryption of the phone of the individuals responsible for the San Bernardino attack. Apple CEO Tim Cook released a letter to Apple customers indicating that this cooperation with the FBI would set a dangerous precedent for all cell phone users and that Apple plans to appeal this order. We then discussed this in the broader context of the proposal that all cell phone manufacturers put a back door into their cell phones that the government could use (with a warrant) if the necessity arose. Such a proposal has recently been introduced in CA. This proposal would require that any cell phone sold in CA have this feature.

The question of the week asked whether a warrant should be required for the use of drones by law enforcement. The vote was originally 4 no’s to 2 yes’s, but this was in part driven by the fact the question asked if the FAA should require the warrants. Two of the students who answered no did think that warrants were required, but that the FAA, in its primary role of aviation safety, should not be the one to require the warrants. We discussed whether the exclusionary rule, applied after the fact on a case-by-case basis, or state legislation pre-empting law enforcement’s use of drones without a warrant is the best mechanism for ensuring that the use of drones does not violate the Fourth Amendment. As part of this discussion, we discussed some of the unique characteristics of drones that are of concern. Some of the concerns included: the relatively inexpensive cost of drones, the fact that they can be very small or fly high enough so that people do not know they are being watched, their ability to conduct persistent surveillance, and the amount of details that can be collected. When compared the use of the GPS tracker at issue in Jones, the use of drones provides more information to law enforcement. The application of Justice Alito’s concurring opinion rationale in Jones would seem to require a warrant for drones, but the trespass rationale articulated in Justice Scalia’s opinion for the Court in Jones would not apply to drones because of the lack of a physical trespass.

Finally, we discussed this week’s blog post topic of body cameras. We considered some of the benefits of body cameras such as accountability for both the police and those they interact with and the ability of body cameras to provide an additional account of an incident. We also discussed some of the privacy concerns associated with body cameras, specifically the concerns of victims and witnesses, and to a lesser extent, of the officers wearing the cameras. We also considered some of the costs of reviewing and redacting all of the video to comply with public requests for this footage.

We discussed several questions regarding body cameras, the answers to some of them depending on the answers to others. For example, the answer to if the body cameras should be on all the time depended on who would have access to the information down the road. Some of the questions considered were: Should cameras be on all the time? Should notice be required for the use of cameras? Should police be allowed to review the footage prior to filling out reports? How long should the information be kept? Who should have access to the information? Should facial recognition software be added to body cameras? One of the questions that most people answered no to was if the use of facial recognition technology should be integrated with these cameras.