The Electronic Frontier Foundation (EFF) has filed a new amicus brief in the Ninth Circuit Court of Appeals asking the court to reconsider a finding allowing people to enter private homes and conduct warrantless video surveillance.
While a decision like that might seem totally insane to some readers of End the Lie, it should be noted that federal Judge William Griesbach, the chief judge in the U.S. District Court, Eastern District of Wisconsin, ruled that federal agents can enter private property without permission and place hidden surveillance cameras without a warrant.
Yet this case is radically different as it involves U.S. Fish and Wildlife agents investigating Ricky Wahchumwah for the crime of selling bald eagle and gold eagle feathers, a federal crime.
An undercover agent went to Wahchumwah’s home pretending to be interested in purchasing feathers while secretly recording the details of his home with a tiny video camera hidden in his clothes – all without a warrant.
Wahchumwah eventually appealed to the Ninth Circuit Court of Appeals, the federal court with appellate jurisdiction in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (along with Guam and the Northern Mariana Islands).
The EFF is now arguing that the Ninth Circuit panel made mistakes and is calling for the entire Ninth Circuit to hear the case.
According to the EFF, the panel made two mistakes. First, they failed to analyze the warrantless home video surveillance under what is called the Fourth Amendment’s trespass theory.
This is based on a Supreme Court decision in United States v. Jones last year which found that when the government trespasses onto private property in order to obtain information, it is indeed a “search” under the Fourth Amendment.
While under common law a defendant was not liable for trespass if the landowner authorized their entry, the consent is ineffective if the landowner is not informed of the “nature and quality” of the defendant’s entry.
“And here Wahchumwah was clearly mistaken as to the agent’s true purpose: to video record everything in his house without Wahchumwah’s knowledge,” the EFF states.
The EFF also argues that the Ninth Circuit “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.”
The EFF argues that the three judge panel dangerously misunderstood the privacy expectations of people who let an individual into their home.
“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,” states the EFF. “This is permissible because people expect visitors to observe portions of their home when they let them in.”
However, the use of a video camera opens up avenues which would never be possible with the naked eye.
“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,” points out the EFF.
“At that point, the surveillance far exceeds the circumstances that justified the search in the first place — the homeowner’s consent — and renders the search unreasonable and unconstitutional unless the government has a search warrant,” the EFF adds.
The EFF points out that new and previously unimaginable types of intrusion into what would otherwise be a private space are emerging every day thanks to technological advances.
While the EFF acknowledges that this type of technology can be used to keep people safe, pointing to the hidden camera used by the FBI to watch the Alabama kidnapper in an underground bunker, it shouldn’t be accepted except in extreme circumstances.
Outside of those 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,” the EFF states.
Unfortunately, this is just one of the many warrantless surveillance methods currently used by the federal government.