[jonpaine]

I'm intrigued by the idea/necessity of some "non-omniscience" factor in weighing 4th amendment cases moving forward.

The argument is always that they're only tracking the "same views enjoyed by passersby on public roads", attempting to create a false equivalence between a camera and a human.

This has always been a pet peeve of mine, because there are factors that nullify the projected equivalence: each of these 'passersby' on the public road can only be in one place at one time. They are not omniscient. Further, there is an assumed limit to the amount of data they can collect (what can one person see from that street corner) and an assumed cost to the collection of that data (and therefore: even a government is limited in the scope of collection; they can't place an agent infront of every house on every street). These were the assumptions present in the time of the writing of the amendment. These assumptions only apply to the economics of humans, not cameras, and materially changes the effect of the law in the present day.

Courts will need a mechanism to articulate that a camera is not equivalent to a passerby. It's not a question of function, it's a question of scope. Much like anti-trust laws or regulations against cornering economic markets don't differentiate based on function, but the scope of the function. When it comes to privacy - the kind that the Fourth Amendment was written to protect - yes, placing agents on corners is substantially different than placing cameras on corners.

[Chris2048]

Nothing a regular passerby nailed to a utility pole couldn't observe.

[HCIdivision17]

That right there may be the most succint and acerbic summary of the issue I've ever heard.

[s_q_b]

With privacy, a change in quantity is a change in quality.

[jliptzin]

With binoculars

[nostromo]

A Supreme Court ruling from 2012 will give you hope.

They unanimously found that the government needs a warrant to put a GPS tracker on your car.

Similar to this case, the state argued that a cop didn't need a warrant to follow a car, so why was a GPS tracker any different? It just made the police work more efficient. The court disagreed.

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

[daxelrod]

My understanding is that the ruling hinges on the physical attachment of the GPS tracker to a person's effect (their car) being a violation of the fourth amendment. The first two pages have a concise summary.

I don't see how that would apply here.

[monocasa]

Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points.

[dragonwriter]

> Sotomayer, Alito, Ginsburg, Breyer and Kagan concurred with the original decision, but wrote separate decisions bring up these exact points.

Strictly speaking, only Sotomayor concurred in the original decision, Alito, Ginsburg, Breyer, and Kagan concurred in the judgement (that is, the result).

The difference is significant in general, because the decision includes the rationale, and the Alito opinion (joined by Ginsburg, Breyer, and Kagan) disagrees with the rationale of the majority opinion. (That is, the majority held trespass to be decisive, Sotomayor agreed that it was in this case, but explicitly wrote a concurrence to argue that trespass wasn't necessary for a violation, and the other four agreed that GPS was a violation, but disagreed that trespass was an appropriate consideration.)

That is, there were four justices who believed that the GPS tracker was a violation because of the trespass to the target's property, four justices who though it was a violation for other reasons, but not because it was trespass to property, and one who thought it was violation because of trespass to property as well as other reasons.

Which results in the interesting situation, in that there were different (but overlapping with Sotomayor in both) 5-vote majorities both for the violation due to trespass view and the violation due to reasons-other-than-trespass view.

[cvwright]

> Sotomayer, Alito, Ginsburg, Breyer and Kagan

One of these things is not like the others. Did Alito take the same position as the others listed here?

[monocasa]

Basically. Sotomayer wrote one concurring decision, Alito wrote the other, and the rest were with Alito. Alito's not all bad; this decision really brought out the anti-government side of him.

[derekp7]

So basically instead of a GPS tracker, they could have an autonomous silent drone follow a few feet behind the vehicle instead, and that wouldn't violate the ruling.

[dogma1138]

Yes, the police doesn't need a warrant to tail you, question any one you speak too, or even use public systems to gain information on you, heck they technically don't even need in some cases a warrant to say get your phone records or any other record from any other person or company (they do need consent which is more often than not the actual reason behind a warrant being filed in the first place as it solves that issue).

They may not however tamper with your personal property.

If you do not own the car and say it's a company car the police might also not need a warrant to put a GPS tracker on it if they get consent from your employer, this might also cover rental cars (not sure about leases).

[snuxoll]

Is a passerby or member of the general public allowed to attach a camera to a utility pole? Last I checked, even putting flyers on utility poles in most municipalities is technically not allowed, even though they usually let you get away with it.

That to me would be a pretty clear line between a passerby and law enforcement in this case.

[xkiwi]

I found an interesting comment on Arstechnica's reader comments:

"I'm curious: would they need a warrant to sit in a car outside someone's house to watch them? " -Zak

[DannyBee]

At some point it may become stalking in a lot of states if they have no warrant.

[dogma1138]

No it doesn't, it can however be used to file a harassment or abuse of power law suit against the officers / police department / DA.

The police doesn't need a warrant for most things they due in their line of duty, most warrants are requested to compel instead of risking seeking consent not because the law mandates judicial approval.

[DannyBee]

"No it doesn't"

This is true but not for the reason you cite. It would be stalking if they make a statement that will place the person in reasonable fear of harm. If they did that, in most states, it won't matter whether they are doing it as cops or not. Some states have "no lawful justification" in the text (which would protect police), but most don't.

Various states do have laws that would cover this that are not stalking (violations of various invasion of privacy, wiretapping, etc).

Most are written in the way that it will be unlawful even if they are police.

[superuser2]

Attaching something to the car quite literally violates "the right of the people to be secure... in their effects."

The Constitution however says nothing about "in their movements" or "in the light they reflect."

[Lawtonfogle]

If nothing else, someone who spent 24/7 watching a person for weeks would soon find themselves facing a restraining warrant or some similar legal tool to stop stalking.

[superuser2]

Anti-stalking laws tend to require that the stalker be actively threatening in some way. Passive observation isn't generally enough to do it.

[Lawtonfogle]

Significant amounts of passive observation without some explanation (such as the paparazzi following a celebrity) would qualify. It wouldn't be criminal (initially), but it would be enough to get legal intervention to be made to stop, especially if it had been documented to have been occurring for weeks.

[superuser2]

On the side of photographers' rights:

You're talking about placing a EULA on receiving visible light. That the photons have interacted with your person doesn't make them yours. Trying to tell people what they can and can't do with incoming visible light in a public place is an egregious breach of their freedom.

You simply do not have the authority (morally or practically) to control what happens to other people's observations about you in public spaces. It's not your data, it's theirs. Reaching into people's sensory systems and making rules about what can't get written down or shared is a disgustingly Orwellian violation of their autonomy of thought and freedom of speech.

You have a right to privacy in your enclosed property, over your secure communication channels, etc. When you can be seen from a public place, you simply don't.

On the belief that pervasive surveillance is a societal problem, it might be reasonable to restrict the state from using its property/infrastructure for surveillance camera positions, or to prevent the police from using such a system to go trawling for targets to investigate.

But you absolutely cannot bar a private individual from having cameras on his person/property/car or place restrictions on how he shares that data.

[fnordfnordfnord]

Exactly, if the man had stepped out on his porch, surveyed the landscape, and noticing no person present then decided to urinate on his lawn (in view of the camera), (as is a great rural American tradition), is the man now potentially on the hook for indecent exposure?

[fapjacks]

To be blunt, I think phrasing things as questions is not helpful, because the government entities that want to violate all of our rights will just answer "yes" or whatever suits their current spasm of sociopathy and control. We need to start phrasing these things in a manner that says "NO" and doesn't leave it open for interpretation. No, a person should not be on the hook for indecent exposure because individuals should be able to decide when they have an expectation of privacy. No asshole in the government should be able to say "everybody doing thing X (or using thing Y) does not have an expectation of privacy" because that's what they say about everything. Nothing makes me rage harder than these criminals in the government saying things like that about me. Like this stuff about Tor users not having an expectation of privacy. If those people don't have an expectation of privacy, nobody does. So let's stop phrasing these kinds of things as questions and be more forceful about how we really feel.

[droithomme]

Yes, good point. A passerby is passing by, not standing there 24 hours a day for 10 weeks staring in a particular direction. So they are not really the same thing.

[Mtinie]

The passerby could attempt to stand there 24 hours a day for 10 weeks looking in the same direction but I expect that at some point during that time period the they would harassed by local law enforcement concerning the nature and purpose of their "loitering".

[GauntletWizard]

I've got the rough equivalent: a couple nosy retired neighbors, who email the neighborhood mailing list every time they see a truck roll down the street they don't recognize. They don't get harassed by law enforcement, in fact, they're on great terms.

The increasing omniscience of your neighbors brings society back from a relatively short period of anonymity. In a small town, a single officer off the main road knew everyone's comings and goings. This did lead to a lot of abuse, and I'm glad that we're beyond the worst of sheriff as bully. But the answer to increasing observational powers isn't going to be in forcing law enforcement to be crippled, it's going to be in better open access and transparency on what and who they are targeting.

[Mtinie]

I agree to a certain degree, but if I understand this particular case correctly, isn't one of the conflicts in this case the difference between general surveillance vs. targeted surveillance?

It's one thing to say that "everyone" is under observation when a 360-degree camera is posted on a pole in the middle of town, but another when a single lens camera is posted on the same pole but only pointed at your bedroom window. Now, whether they are legally different is not something that I'm qualified to address, but personally I see a wide difference between the two.

[fapjacks]

Bingo. It boils down to the narrative law enforcement wants to make their case, and nothing else matters to them.

[maxerickson]

A better solution would be some new constitutional amendments.

Of course not an easy thing, but it's a lot better than hand wringing about what the courts will gin up.