
Feds nail webcam on utility pole for 10 weeks to spy on suspect - pavornyoh
http://arstechnica.com/tech-policy/2016/02/feds-nail-webcam-on-utility-pole-for-10-weeks-to-spy-on-suspect/
======
jonpaine
I'm intrigued by the idea/necessity of some "non-omniscience" factor in
weighing 4th amendment cases moving forward.

The argument is always that they're only tracking the "same views enjoyed by
passersby on public roads", attempting to create a false equivalence between a
camera and a human.

This has always been a pet peeve of mine, because there are factors that
nullify the projected equivalence: each of these 'passersby' on the public
road can only be in one place at one time. They are not omniscient. Further,
there is an assumed limit to the amount of data they can collect (what can one
person see from that street corner) and an assumed cost to the collection of
that data (and therefore: even a government is limited in the scope of
collection; they can't place an agent infront of every house on every street).
These were the assumptions present in the time of the writing of the
amendment. These assumptions only apply to the economics of humans, not
cameras, and materially changes the effect of the law in the present day.

Courts will need a mechanism to articulate that a camera is not equivalent to
a passerby. It's not a question of function, it's a question of scope. Much
like anti-trust laws or regulations against cornering economic markets don't
differentiate based on function, but the scope of the function. When it comes
to privacy - the kind that the Fourth Amendment was written to protect - yes,
placing agents on corners is substantially different than placing cameras on
corners.

~~~
nostromo
A Supreme Court ruling from 2012 will give you hope.

They unanimously found that the government needs a warrant to put a GPS
tracker on your car.

Similar to this case, the state argued that a cop didn't need a warrant to
follow a car, so why was a GPS tracker any different? It just made the police
work more efficient. The court disagreed.

[http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf](http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf)

~~~
daxelrod
My understanding is that the ruling hinges on the physical attachment of the
GPS tracker to a person's effect (their car) being a violation of the fourth
amendment. The first two pages have a concise summary.

I don't see how that would apply here.

~~~
monocasa
Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original
decision, but wrote separate decisions bring up these exact points.

~~~
cvwright
> Sotomayer, Alito, Ginsburg, Breyer and Kagan

One of these things is not like the others. Did Alito take the same position
as the others listed here?

~~~
monocasa
Basically. Sotomayer wrote one concurring decision, Alito wrote the other, and
the rest were with Alito. Alito's not all bad; this decision really brought
out the anti-government side of him.

------
tzs
> "There is no Fourth Amendment violation, because Houston had no reasonable
> expectation of privacy in video footage recorded by a camera that was
> located on top of a public utility pole and that captured the same views
> enjoyed by passersby on public roads", Judge John Rogers wrote for the
> unanimous court [...]

There are two big differences between passersby and unobtrusive fixed cameras.

• Passersby are generally easily noticeable.

• Passersby pass by.

A level of care that would make one safe with a high probability against being
seen by passersby might fail completely against unobtrusive fixed cameras, so
I'm not sure that the passersby-could-see standard should be the one used for
cameras.

For example at a house my family had when I was a kid we were out in the
country in a flat valley. From the end of our driveway I could see far enough
up and down the road to see any potential passersby a minute away and postpone
anything sensitive I wanted to do in the front yard until they had passed by.

On the other hand, I suppose that even if we decide not to allow law
enforcement to use unobtrusive fixed cameras in situations like this it won't
stop private parties from using them. Any private property that has a view
into your private property could be a place where someone has decided to do
some video voyeurism and is recoding.

Maybe the technological cat is out of the bag and we are just going to have to
accept that if you don't want something seen you need to do it somewhere where
there is no visibility from anywhere outside your property.

~~~
ThrustVectoring
There's another big difference as well - Passersby have distinct, human-
fallible memory, while fixed cameras can have the information they record
stored and combined.

There's a gigantic difference between having a bunch of people see you in
various places as you go about your day, and a searchable database of every
place your face has been seen in public over the last two years.

~~~
superuser2
Are you suggesting we legislate which thoughts and observations people are and
aren't permitted to record and share?

~~~
ThrustVectoring
No, but I am suggesting which databases people should or should not be able to
make. Or more specifically, which databases the police should or should not be
able to make and access.

"Who was seen where and when" isn't particularly privacy-violating. It's the
search capability that is. This is especially true when it's targeted at a
particular person - I'm not that worried about the police finding people who
were in a particular area at a particular time. They've had that power for a
long time, through canvassing and other traditional detective work. What I'm
worried about is giving them the new ability to quickly and cheaply compile a
list of everywhere someone has been and when.

------
charonn0
> The lower court ruled in Houston's case that, even if the long-term
> warrantless surveillance breached Houston's Fourth Amendment rights, the
> video evidence of his carrying weapons on the property would not be excluded
> at trial because the authorities said they held a good-faith belief that the
> spying was constitutional.

Ignorance of the law is no defense, unless your job is to defend the law?

~~~
rhino369
The purpose of the exclusionary rule and the "fruit of the poisonous tree" is
to prevent the police from purposely violating the 4th amendment. There is no
other reason why illegally obtained evidence shouldn't be used to convict a
criminal.

So the good-faith exemption exists to make sure technical violations that
occurred during a good faith attempt at following* the constitution don't
result in a criminal going free.

Think about it. If your mom gets murdered and the cops get a warrant that for
some reason wasn't technically valid, would you want the murderer to get off
scott free? How that that serve justice.

I think the court may be misapplying the good-faith exemption. In my
jurisdiction it only applies only in situations where there was a defective
search warrant. But each state may be different.

TL;DR; it doesn't make it legal, but it also doesn't give you a get out of
jail free card.

~~~
Dylan16807
>If your mom gets murdered

I wouldn't be happy if the police screwed up for any reason. But violating
rights in one case makes it more likely that rights will be violated in other
cases. Better to let one guilty person go free than to injure and possibly
lock up a hundred innocent people.

~~~
rhino369
>But violating rights in one case makes it more likely that rights will be
violated in other cases.

So find another way to punish it. Why should that get some off of a criminal
charge. Most of world has no such rule.

And the point of a good-faith exemption is because allowing good-faith fucks
up to be used as evidence doesn't increase (much) the likelihood of
violations.

>Better to let one guilty person go free than to injure and possibly lock up a
hundred innocent people.

But throwing out ill gotten evidence after it was obtained doesn't decrease
the chances of locking up innocent people.

------
DannyBee
The court makes a pretty bad argument here, and one that if it went to the
supreme court, would get torn apart (regardless of how they ruled) :
""Moreover, if law enforcement were required to engage in live surveillance
without the aid of technology in this type of situation, then the advance of
technology would one-sidedly give criminals the upper hand. The law cannot be
that modern technological advances are off-limits to law enforcement when
criminals may use them freely.""

Except, nobody has argued it's off limits, instead, they argue _that using
that technology should require a warrant_. The argument that criminals can use
the technology freely is also pretty much a non-starter. The whole point of
the 4th amendment is to say that law enforcement can't freely do searches even
if others could.

By ignoring this point, the court makes the opinion a _lot_ weaker than it
could have been.

------
cannikin
The judge said that the webcam provided them the same view, from a public
place, that agents would have had if assigned to watch the guy 24/7\. (It
seems to me that the view from ~30ft up is very different than one from the
ground.)

Is there a line where the surveillance would NOT be legal? Could they have had
a drone circling his house? What about a satellite? Do you have an expectation
of privacy from ABOVE your house even if you don't have it from public roads?

~~~
binarycrusader
There's also the issue that no member of the public would legally be allowed
to attach a camera to a utility pole like that.

Nor would they be allowed to create their own temporarily-installed pole with
a camera on the top.

So to me, the public view argument only holds if the public was capable of it.

~~~
cornellwright
Any member of the public (with a fair amount of money) could also just charter
and fly a plane over the property and watch. While persistent surveillance
would be incredibly expensive, it's still possible. A neighbor could
temporarily install a pole with camera or allow another individual to do so.

In short, you have no expectation of privacy when it's possible to be seen
from a public right of way. I really see no problem with what LE did here.

~~~
binarycrusader
Yes, a public member could charter a plane, and that would be fine.

Utility poles are generally owned by a private company though or the local
government and are regulated.

Members of the public are not generally permitted to hang things or attach
things to them, and since they are usually located on private property or
property that the local government has rights to, the general public also
isn't generally permitted to place things on them.

------
aksquestions
Isn't the real story here that this guy was acquitted of murdering a police
officer and was thus targeted by law enforcement for retribution? His 2010
felony conviction was for "evading arrest", which is what led to him being
deprived of his 2nd amendment rights and thus set the tripwire for this
violation. But what would you do if you knew law enforcement had it out for
you for killing one of their own?

------
ChuckMcM
And in this case ([http://arstechnica.com/tech-policy/2014/12/cops-illegally-
na...](http://arstechnica.com/tech-policy/2014/12/cops-illegally-nailed-
webcam-to-utility-pole-for-6-weeks-to-spy-on-house/)) the camera video was
ruled inadmissible.

I expect this to get to the Supreme Court given the constitutional argument
but I really have no idea how they might come down on the issue.

~~~
colechristensen
Most likely in a very narrow decision which does not put the issue to rest
because, like many things, surveillance technology now is quite a bit
different than the authors of laws could have imagined – making sweeping
decisions in either direction would very likely have broad and ridiculous
consequences.

~~~
ChuckMcM
I would hope that they come down on requiring a warrant to install additional
surveillance. I can see the argument that if the cameras at the convenience
store just happen to record what goes up and down your driveway, that is fair
game, but if they go out of their way to install an additional camera to
watch? For me that sounds like an easy to implement standard which is
reasonable.

------
fweespeech
As long as its a webcam-per-suspect-per-place-of-business basis and not a mass
grab to do this across entire geographical areas it seems fine.

The problem is when they go nuts and try to capture "everything". The balance
between the effort to keep an eye on a specific suspect in a specific case +
budget/manpower/etc is reasonable vs our need for privacy.

~~~
dsp1234
_As long as its a webcam-per-suspect-per-place-of-business basis and not a
mass grab to do this across entire geographical areas it seems fine._

That's the problem right there though. The FISC has already ruled that if
there is no constitutional issue with a single targeted act, then adding more
and more acts together can't create a constitutional issue out of whole cloth.

In other words, if it's OK to do it with one person as a target, then it's OK
to do it to everyone as a target.

 _" Put another way, where one individual does not have a Fourth Amendment
interest, grouping together a large number of similarly-situated individuals
cannot result in a Fourth Amendment interest springing into existence ex
nihilo. "_[0]

[0] -
[http://www.fisc.uscourts.gov/sites/default/files/BR%2013-109...](http://www.fisc.uscourts.gov/sites/default/files/BR%2013-109%20Order-1.pdf)
page 9, paragraph 1

------
private_citizen
As a private citizen, can I go around nailing up cameras on utility poles?

I assume the federal government does not own the pole, so it would require the
permission of the pole owner and/or the municipality, no?

~~~
toomuchtodo
No and yes. You just need to rent the pole from the utility or municipality.

~~~
private_citizen
Did the ATF rent the pole from the public utility? The article was unclear on
that point.

~~~
dsp1234
FTA:

"at the direction of the ATF and without a warrant, the utility company
installed a surveillance camera on a public utility pole located roughly 200
yards from Leon’s trailer."

The utility company installed the camera voluntarily.

~~~
gknoy
When the ATF asks you do to do something without a warrant, is doing it really
"voluntary"? What business owner would say no?

~~~
dsp1234
_is doing it really "voluntary"?_

Of course. Most utility companies have a large number of lawyers. Lawyers
which advise them on actions. Sometimes those lawyers are going to say "just
do it, it'll be easier", but it's still voluntary. What do you think the
effect of saying "Our lawyers are pretty sure that this type of surveillance
would require a warrant. Do you have one of those?" would be? It's not like
they are going to shoot up the utility.

 _What business owner would say no?_

There appears to be no evidence that the ATF told the utility that they would
take any adverse action if they did not install the camera. This is just like
if the police come to your door and say "Can we come in?". Let them in after
they ask, and that is voluntary. Even if most people would not want to say no
(which is something that state and federal officers rely on). Many companies
that get requests from local and federal agencies will tell them that their
request is deficient and to provide proper documentation (ex: facebook and
twitter have sent back requests or tried to squash subpoenas that they deem to
be insufficient). My guess is that we don't hear about this very often because
it's supremely easy for the agency to just go get the warrant (it's not a high
barrier at all) or find someone more amenable. It's just easier for the agency
if the company voluntarily complies.

------
Zikes
> "Moreover, if law enforcement were required to engage in live surveillance
> without the aid of technology in this type of situation, then the advance of
> technology would one-sidedly give criminals the upper hand. The law cannot
> be that modern technological advances are off-limits to law enforcement when
> criminals may use them freely."

Nobody said you can't use webcams for surveillance, just that you need a
_warrant_ because that's how the law works.

At least, that's how the law is _supposed_ to work.

~~~
ewindisch
Right, this is a matter of the rule of law. Criminals may do quite a number of
things that law enforcement cannot because criminals do not follow the law.
Rulings like this could drive us even further into a surveillance society
where the Feds become comfortable putting cameras on every street corner (and
some may say they're already started doing this).

~~~
knorby
Chicago, as an example, does have cameras on streets in certain areas.
Evidence gathered by these is considered admissible without a prior warrant,
and no one in the state really debates that, ACLU included ([http://www.aclu-
il.org/chicago-sun-times-aclu-raises-red-fla...](http://www.aclu-
il.org/chicago-sun-times-aclu-raises-red-flag-over-traffic-cameras-360-degree-
view/)).

There are a lot of stronger counter arguments against this approach that don't
have to do with warrants. Cameras don't stop crime, they can only document it
and possibly alert to something happening. It is better to just make arguments
about the practice of mass surveillance and police priorities than to hope
court rulings will knock out cameras placed on public land as
unconstitutional.

------
progressive_dad
Personally, I welcome our new free webcams. Next time they're retrieved and
plugged into a machine on the ATF VPN I'll immediately have all the evidence
my defense team is legally entitled to for discovery.

------
Spooky23
This isn't a new thing. In the old days, a guy in a Verizon van would wire up
a cctv on a pole to a nearby storefront or apartment and record the goings on.

I think the only difference here is the rural nature of the location.

------
newman314
I won't repeat the points others have made on this thread but I find the
following pretty insane. That judge should not be permitted to give LE what
amounts to a mulligan.

\--

    
    
      Writing separately, Judge Thomas Rose said that the authorities had enough probable cause to get a warrant, and that their failure to do so was "harmless."

------
arprocter
Something doesn't make sense to me:

Guy became a felon in 2004, but is involved in a shooting in 2006, and now the
feds suspect he might have illegal access to firearms (because felons aren't
allowed guns) - how did he not get popped for that after the shooting in 2006?

------
Turbo_hedgehog
I have no problem with this.

