EFF Legal Intern Talya Nevins contributed to the drafting of this blog post.

A federal appellate court in Massachusetts has issued a ruling that effectively allows federal agents in Puerto Rico and most of New England to secretly watch and videorecord all activity in front of anyone’s home 24 hours a day, for as long as they want—and all without a warrant. This case, United States v. Moore-Bush, conflicts with a ruling from Massachusetts’s highest court, which held in 2020 in Commonwealth v. Mora that the Massachusetts constitution requires a warrant for the same surveillance.

In Moore-Bush, federal investigators mounted a high-definition, remotely-controlled surveillance camera on a utility pole facing the home where Nia Moore-Bush lived with her mother. The camera allowed investigators to surveil their residence twenty-four hours a day for eight months, zoom in on faces and license plates within the camera’s view, and replay the footage at a later date.

In a deeply fractured opinion, the First Circuit Court of Appeals ultimately allowed the government to use the footage in this case, overturning an earlier trial court ruling that would have suppressed the evidence.

EFF joined the ACLU and the Center for Democracy & Technology in an amicus brief at the First Circuit’s rehearing en banc (where all the active judges in the circuit rehear the case). We argued that modern pole camera surveillance represents a radical transformation of the police’s ability to monitor suspects and goes far beyond anything that could have been contemplated by the drafters of the Fourth Amendment. Pole cameras allow police to cheaply and secretly surveil a suspect continuously for months on end, to zoom in on phone screens or documents, and to create a perfect record that can be searched and reviewed at any time in the future. None of these capabilities would be possible with a traditional stakeout. Finally, we urged the judges to consider the equity implications of finding that a person has no reasonable expectation of privacy as to activities in their exposed front yard, as this would grant greater Fourth Amendment protection to homeowners with the resources to erect high fences or hedges than to renters or those without the means to build such protections.

The government argued in Moore-Bush that a 2009 First Circuit case called United States v. Bucci governed the outcome in this case because it upheld similar pole camera surveillance. The trial court distinguished Bucci, finding the Supreme Court’s landmark 2018 holding in Carpenter v. United States, effectively changed the game. Like the cell site location information at issue in Carpenter, the trial court held long-term, comprehensive, continuous video surveillance of the front of a person’s home violates their reasonable expectation of privacy. Given this, the trial court suppressed the pole camera evidence.

On appeal, the First Circuit disagreed. It reversed the trial court’s decision in a panel opinion in 2019, and has now reaffirmed that decision after a rehearing en banc. Even though three of the judges agreed with the district court, finding Carpenter “provides new support for concluding that the earlier reasoning in Bucci is no longer correct,” they held the police relied on Bucci in “good faith,” and therefore the evidence should not have been suppressed.

The good news: Chief Judge Barron, joined by Judges Thompson and Kayatta, wrote a concurring opinion finding that pole camera surveillance constitutes an illegal search under Carpenter. This analysis had three parts: (i) Moore-Bush had exhibited a subjective expectation of privacy in the cumulative conduct that the camera had captured, (ii) that expectation was objectively reasonable in the eyes of society, and (iii) the use of the pole camera contravened that expectation.

Barron wrote that, although each of the moments captured by the pole camera could have been viewed by a casual passerby, Moore-Bush had chosen to live on a quiet street where she would never have expected to be meticulously observed for eight months. He combined this subjective prong with the objective reasonableness analysis from Carpenter, which held that even if an individual action is public, the comprehensive compilation of such public actions over time becomes unreasonable–­–sometimes called the “mosaic theory.” In a nod to the equity argument we raised in our amicus brief, Barron wrote that combining the subjective and objective analysis allows the court to ensure that people who more clearly manifest an expectation of privacy are not granted greater Fourth Amendment protections than those who cannot do so.

Barron also recognized that today’s advanced surveillance technology makes it possible to “effectively and perfectly capture all that visibly occurs in front of a person's home over the course of month,” something that would have been virtually impossible with a pre-digital, traditional stake-out. The concurring opinion noted that videosurveillance technology is evolving rapidly, and the court should keep in mind the “advent of smaller and cheaper cameras with expansive memories and the emergence of facial recognition technology.” Further, pole camera surveillance of a home is an especially egregious Fourth Amendment violation, as it allows police to record and review in detail many months of highly personal moments. Ultimately, Barron’s concurring opinion found that the comprehensive nature, ease of access, and retrospective quality of pole camera footage contravened a reasonable expectation of privacy, and thus violated the Fourth Amendment. Going forward, Barron advocated that Bucci should be overruled, given Carpenter. But, with an evenly split court, Bucci remains good law in the First Circuit.

The bad news: The other three First Circuit judges sharply disagreed with the Barron concurrence. They joined a separate opinion authored by Judge Lynch, finding pole cameras were no different from “conventional surveillance [] tools” like private security cameras. This is significant because Carpenter explicitly stated it did not apply to these tools. Lynch dismissed the fact that pole cameras are different from traditional security cameras because they are higher definition, equipped with much greater storage capacity, and can be controlled remotely. Lynch argued that this is a mere “sharpening” of a conventional tool.

Lynch further wrote that people know they can be seen in front of their homes, and thus they have no reasonable expectation of privacy there if they do not take precautions to ensure they cannot be seen by passersby. She distinguished the pole camera footage from the CSLI data addressed in Carpenter by saying that because pole cameras are stationary and surveil only one location, they do not capture the “whole of [a person’s] physical movements” in the same way as location data. She pointed to a recent Seventh Circuit opinion, U.S. v. Tuggle, that refused to apply Carpenter to pole cameras because the Supreme Court has not yet explicitly extended the mosaic theory to digital video surveillance.

Going forward: The outcome in Moore-Bush creates an explicit conflict between how federal and state law enforcement agencies may conduct surveillance in Massachusetts. In Commonwealth v. Mora in 2020, Massachusetts’s Supreme Judicial Court held that similar pole camera surveillance, when conducted without a warrant, violates the state’s constitution. Like Barron’s concurrence in Moore-Bush, the court held that the extended duration and continuous nature of pole camera surveillance mattered. Even where people “subjectively may lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future.” However, with Moore-Bush in place, state and local police could try to circumvent Mora merely by asking their federal partners to conduct surveillance for them.

The First Circuit’s ruling in Moore-Bush leaves intact the court's earlier precedent in U.S. v. Bucci. However, given the judges were evenly split in their reasoning, there is some room for hope that Bucci could be overruled in the future.