Home Video Surveillance Without a Warrant? EFF Asks Appeals Court to ReconsiderHanni Fakhoury First, it failed to analyze the home video surveillance under the Fourth Amendments trespass theory. Last year, the Supreme Court in United States v. Jones made clear that when the government trespasses onto private property for the purpose of obtaining information, it searches under the Fourth Amendment. Under common law, a defendant was not liable for trespass if the landowner authorized their entry. But that consent is ineffective if the person is mistaken about the nature and quality of the defendants entry. And here Wahchumwah was clearly mistaken as to the agents true purpose: to video record everything in his house without Wahchumwahs knowledge. Second, the court incorrectly found Wahchumwah had no reasonable expectation of privacy because he knowingly exposed the interior of his home to the agent when he let him in his house. When an undercover officer enters a home with the permission of the homeowner, he is obviously able to observe things with his eyes, take mental note of them and relay those opinions to other officers when he returns to the police headquarters. This is permissible because people expect visitors to observe portions of their home when they let them in. Thats why people typically clean their house and put away embarrassing things before having guests over for dinner. But people dont expect their guests to look at the letters on their desk, peer into rooms as they walk the hallways and generally rummage at will through the house. But thats precisely what the video camera here has the potential to do. A quick glance into a bedroom may not reveal much to the naked eye, but a video camera can capture it instantly and allow officers to rewind and zoom in from the comforts of their office without the homeowner wondering why their guest is lingering in the hallway. At that point, the surveillance far exceeds the circumstances that justified the search in the first place the homeowners consent and renders the search unreasonable and unconstitutional unless the government has a search warrant. Ultimately, in deciding whether something is exposed to another person, the key question is not whether someone can possibly discover the information but whether another mightactually discover it. And with advances in technology, new and unexpected types of intrusions into otherwise private spaces are popping up every day. Obviously, technology like small video cameras should be used by law enforcement to help make us safer. But outside of extreme circumstances involving an imminent physical threat of death or serious violence to another person, law enforcement should be required to obtain judicial authorization through a search warrant before using this potentially invasive technology especially when investigating non-violent crimes like the illegal sale of bird feathers. We hope the entire Ninth Circuit reconsiders it dangerous decision that truly reveals the power of technology to shrink our privacy expectations. For the latest news and legislation about electronic privacy, please visit the Electronic Frontier Foundation. linkwithin_text=Related Articles: 