' Growing Private Surveillance of Roads Suggests Further Questions for Fourth Amendment | MTLR

Growing Private Surveillance of Roads Suggests Further Questions for Fourth Amendment

            Advances in ubiquitous computing allow private citizens to arm their automobiles with cameras to observe and record their surroundings continuously. For example, each Tesla automobile has “eight cameras and powerful vision processing [to] provide 360 degrees of visibility at up to 250 meters of range.” Amazon’s Ring expanded its line of consumer camera products to include dashcams with “two HD cameras with Night Vision [that] detect and record movement.” These automobile cameras expand surveillance of our roadways and public spaces. Furthermore, built-in cloud storage with months or more of data retention allows those records to provide an opportunity for government and police access. These potentially enable police to observe individuals anytime they leave the privacy of their homes. This technology raises new concerns about the Fourth Amendment’s limit on government searches under the long-standing reasonable expectation of privacy standard.

The Supreme Court interprets the Fourth Amendment as requiring a warrant for the government to perform any search that violates a “reasonable expectation of privacy.” The Supreme Court’s 2018 decision in Carpenter v. United States held that the government’s access to cell phone site records maintained by wireless carriers violated the defendant’s reasonable expectation of privacy. The cell phone records at issue revealed the defendant’s physical location over the course of 127 days. Those cell phone records existed because the defendant’s wireless carrier kept records of any customer’s cell phone communicating with their cell towers in various physical locations. Breaking with precedents that permitted the government’s warrantless collection of such information from third parties, the Court determined that the defendant had a “reasonable expectation of privacy in the whole of his physical movements.” Since that decision, lower courts have continued to work through the precise contours of that reasonable expectation of privacy. For example, the 7th Circuit allowed warrantless government surveillance through the installation of a camera on a telephone pole pointed at the defendant’s house for 18 months. Despite the long duration of observation, the court considered it only a sliver of the defendant’s life and not the exhaustive picture of his every movement that was at issue in Carpenter. Automobile surveillance capabilities add several new wrinkles to the jurisprudence on the Fourth Amendment’s warrant requirement for government searches.

First, automobiles, in the aggregate, allow for the comprehensive surveillance of vast public and private spaces beyond the capabilities of even large stationary camera systems like CCTV surveillance. Some estimates put the most surveilled city at 119.57 cameras per 1000 people, while the United States is estimated to have 890 automobiles per 1000 people. This broad scope will allow the government to collect information similar to the persistent location tracking in Carpenter. While roads limit automobiles, roads blanket our cities, suburbs, and rural areas. Further, automobiles may enter private property and homes. Therefore, the potential scale of surveillance available will broadly encompass most public and many private spaces.

Second, automobiles may record video of anyone nearby. Combined with image recognition algorithms, e.g., facial and license plate recognition, video surveillance may provide tracking of particular individuals through their mere presence near those automobiles. Unlike Carpenter, where the defendant’s cell phone created the location records, other people’s automobiles may provide information on an individual target of government surveillance. The surveillance provided by automobile cameras extends beyond the owner or operator of the automobile, and bystanders will have no choice or control over their inclusion in automobile video recordings.

Additionally, recordings from automobile cameras may provide significantly more details about those individuals than other systems. In Carpenter, the cell phone records provided only general location information about the defendant, but the Supreme Court described this as “an intimate window into a person’s life.” The geographically comprehensive video surveillance system potentially available through automobile cameras will allow for an even greater depth of information by recording not only the location but also audio and video of individuals. Therefore, automobile surveillance has the potential to provide more detailed information to the government.

Unlike closed-circuit television, traffic cameras, and other government surveillance methods, private individuals install, maintain, and own automobile cameras. Regardless of Fourth Amendment limits, these private individuals may share their video recordings with the police. Many individuals already share their doorbell camera footage with police in many cities across the country. And the device manufacturers streamline these efforts by designing products that upload all information collected to the manufacturer’s cloud computing systems.

In cases like Carpenter, the Supreme Court interpreted the Fourth Amendment to preserve the degree of privacy that existed when the amendment was adopted against technology-enhanced government surveillance. With the rapid advancement of technology, we will continue to see challenging decisions arise on the limits of government surveillance.

Jeremy Thomas is an Associate Editor on the Michigan Technology Law Review.

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