Ninth Circuit Gives the A-OK For Warrantless Home Video SurveillanceHanni Fahkoury U.S. Fish and Wildlife agents suspected Ricky Wahchumwah of selling bald and gold eagle feathers and pelts in violation of federal law. Equipped with a small hidden video camera on his clothes, a Wildlife agent went to Wahchumwahs house and feigned interest in buying feathers and pelts. Unsurprisingly, the agent did not have a search warrant. Wahchumwahmoved to suppress the video as an unreasonable search under the Fourth Amendment, but the trial court denied his motion. On appeal before the Ninth Circuit, we filed an amicus brief in support of Wahchumwah. We highlighted the Supreme Courts January 2012 decision in United States v. Jones which held that law enforcements installation of a GPS device onto a car was a search under the Fourth Amendment and specifically focused on the concurring opinions of Justices Alito and Sotomayor, who were worried about the power of technology to eradicate privacy. In our brief we argued that although a person may reveal small bits of information publicly or to a house guest, technology that allows the government to aggregate that data in ways that were impractical in the past means that greater judicial supervision and oversight is necessary. After all, a video camera can capture far more detail than the human eye and is specifically designed to allow the government to record, save and review details for another day, bypassing the human minds tendency to forget. That means police need a search warrant to engage in the type of invasive surveillance they did in Wahchumwahs house. Unconvinced, the Ninth Circuit instead relied on a case from 1966, Hoffa v. United States, ruling that Wahchumwah forfeited his privacy interest when he voluntarily revealed the interior of his home to the undercover agent. But its conclusion contradicts not only the Supreme Courts decision in Jones, but also earlier Ninth Circuit caselaw as well. What that means here is that when the undercover agent concealed his identity and purpose, making Wahchumwah mistaken as to the nature and quality of the home visit, the government trespassed onto Wahchumwahs property. Since that trespass was done for the purpose of obtaining information to get evidence of bald and gold eagle feather and pelt sales the government searched Wahchumwahs home. And it needed a warrant to do that; without one, the search was unconstitutional. Its troubling that the Ninth Circuit did not see it this way (nor are they the only one). Because the sad truth is that as technology continues to advance, surveillance becomes voluntary only by virtue of the fact we live in a modern society where technology is becoming cheaper, easier and more invasive. The Wahchumwah case exemplifies this: on suspicion of nothing more than the benign misdemeanor of selling eagle feathers, the government got to intrude inside the home and record every intimate detail it could: books on a shelf, letters on a coffee table, pictures on a wall. And were entering an age where criminal suspicions is no longer even necessary. Whether youre calling a friends stolen cell phone and landing on the NYPD massive database of call logs, driving into one of the increasing number of cities using license plate scanners to record who comes in or out, or walking somewhere close to hovering drones, innocent people are running the risk of having their personal details stored in criminal databases for years to come. The only way to avoid pervasive law enforcement monitoring shouldnt be to make the choice to live under a rock in the wilderness somewhere. Instead, the Fourth Amendment means today what it meant in 1787: that the right of the people to be secure in their persons, houses, papers, and effects shouldnt be violated unless the government comes back with a warrant. Please visit and support EFF for electronic privacy and freedom. linkwithin_text=Related Articles: 