Time to Make Warrantless Home Video Surveillance ExtinctEFF Ricky Wahchumwah, a tribal member of the Yakima Nation, was suspected of selling bald and gold eagle feathers, as well as the feathers and pelts of other migratory birds, in violation of federal law. As part of its investigation, a undercover agent from the U.S. Fish and Wildlife Service went to Wahchumwahs house, pretending to be interested in buying feathers and pelts. Wahchumwah let him in his house, not knowing that the agent was secretly recording everything with a tiny video camera hidden in his clothes. The agent proceeded to capture two hours of video of Wachumwahs home, including interactions between Wachumwah and his partner and children, and was even left alone by Wachumwah for periods of time, who did not suspect he was being recorded. Charged with violating the Bald and Golden Eagle Protection Act and the Lacey Act, Wahchumwah moved to suppress the video evidence as an unreasonable search under theFourth Amendment. The trial judge denied his motion, ruling that since Wahchumwah let the agent into his house, and the agent could testify to everything he saw in the house, Wahchumwah had no expectation of privacy. Wahchumwah appealed this decision to the Ninth Circuit, and we filed an amicus brief supporting him. As we explain in our brief, a video camera can capture far more detail than a human eye. And unlike the human mind, a video camera doesnt forget. After all, if an officers observations were sufficient, there would be no need for the video camera in the first place. Building on the Supreme Courts landmark decision in United States v. Jones, which ruled the Fourth Amendment prohibited the warrantless use of GPS surveillance to monitor a persons car on public roads for 28 days, we make two main arguments. Second, as Justice Sotomayor said in her concurring opinion in Jones, the fact that technology allows the government to cheaply and efficiently aggregate data in ways that were impractical in the past has the potential to alter the relationship between citizen and government in a way that is inimical to democratic society. While it is technically possible to follow someone for 28 days continuously, it is expensive and difficult. GPS technology now allows the government to track someone wherever they go and as long as they want, all from the comforts of the police station. A video camera does the same thing. Sure, its possible for someone to enter a house and write down everything they remembered seeing hours later when they leave the house. But a video camera is capable of aggregating an enormous amount of data that would be difficult for human senses to replicate. When a video camera secretly enters the home, it can capture things like the mail on your coffee table, the books on a shelf, or the pictures on your wall. And the whole point of a camera is to record and save for another day, allowing the government to not have to rely on the human minds tendency to forget. It can rewind again and again to examine every minute detail of the house. In the past, such intensive video surveillance was reserved for serious, violent crimes. Today, its being used by Fish and Wildlife officers to investigate misdemeanors. A search warrant requirement strikes the right balance between the governments need to investigate crime, and the publics right to privacy particularly in the home, the most private of all places. Hopefully, the Ninth Circuit will reverse the trial court, and eradicate this invasive warrantless surveillance once and for all. Attached Documents linkwithin_text=Related Articles: 