Monitoring the Unblinking Mechanical Eye: Unlimited Static Pole Camera Surveillance of Personal Residence Requires Probable Cause and Warrant Under Massachusetts Constitution, State Supreme Court Concludes

Commonwealth v. Nelson Mora, SJC-12890 (August 6, 2020).

In investigating a drug distribution network, Massachusetts police installed video cameras on telephone and electric poles (“pole cameras”), some of which faced the homes of alleged drug distributors. 

Evidence from the video cameras, as well as other evidence, resulted in indictments.  Several defendants moved to suppress the pole camera evidence and the fruits thereof, arguing that evidence garnered in this way violated Article 14 of the Massachusetts Constitution and the Fourth Amendment of the U.S. Constitution.  

On interlocutory appeal from denial of defendants’ motion to suppress, the Supreme Judicial Court of the Commonwealth of Massachusetts concluded that protracted warrantless video surveillance violated the state constitution.  Having done so, the court declined to address the U.S. Constitutional issues.  

The court remanded the case to permit the trial court to determine whether probable cause supported the installation of the cameras surveilling the personal residences from the outset.

How it happened.  A confidential informant identified defendant Mora as a drug dealer. After a staged purchase of drugs, cameras were installed outside Moran’s and another defendant’s houses.  The cameras provided a view of the front of the house as well as the sidewalk and the adjacent street.  The cameras recorded continuously — for five months in Mora’s case –without audio and were static except for the capacity to zoom in and out.  The interior of homes could not be seen and no particular features permitted nighttime surveillance.  

The trial court found the surveillance unexceptional.  The trial judge denied defendants’ motions to suppress because the cameras captured only information in plain public view.  The cameras aimed at a fixed point and were not capable of capturing detailed activities and associations.  Observation of matters on public display traditionally does not carry a reasonable expectation of privacy and does not require a warrant.  The court concluded that pole cameras did no more than that.  

In de novo review of the central question whether the pole cameras’ surveillance were unconstitutional warrantless searches, the Supreme Judicial Court asked first whether there was a search.  A search may be unconstitutional if it intrudes upon an individual’s reasonable expectation of privacy, but no such expectation is ordinarily found where the observation is of matters in plain view of the publix. 

Pole cameras have been in use for several decades.  Other courts’ reviews have yielded mixed results. 

The court found it unnecessary to address federal issues and noted that the Massachusetts Constitution may afford more protections than the U.S. Constitution.  The court framed the central question is whether a defendant had a reasonable subjective expectation of privacy and whether society would recognize the expectation as unreasonable.  

The appellate court recognized that defendants had subjective expectations that their homes would not be subjected to extended surveillance.  There was no need to create barriers around the property to obtain constitutional protection.  Such a requirement would make the constitutional resource dependant, and an impermissible result, as the home is a castle no matter how humble.  (Slip Op. at 14.)

What society may recognize as objectively reasonable is a large and difficult question, the court opined, but noted that case law has recognized that extended surveillance without probable cause and judicial supervision is problematic.

Location, location, location…and duration. The duration and location of surveillance matters, the court found, making it possible to extend protection to protracted video recording of houses but not to public places, particularly as surveillance cameras are abundant there and in commercial venues.

The Founders’ Prescience. Protecting the home from government intrusion is the reason that federal and state constitutions were drafted as they were.  The promise that the sanctity of the home will not be needlessly or recklessly breached is historically significant, and the framers may be thanked for a prescience that precludes a contemporary Orwellian state.  (Slip. Op. at 22.)

The argument that pole cameras outside the home catch no more than a police officer might see must faile, as the very inexhaustibility of the machines negates comparison.

As heretofore it has not been thought necessary to obtain a warrant to conduct pole camera surveillance, the Supreme Judicial Court decided that remand to determine whether propane cause for use of the cameras existed at the time of installation, which might be established by review of existing evidence submitted in support of warrants that were obtained or by supplementary evidence if needed.  If probable cause existed for installation of all of the cameras, suppression of evidence must be denied, but if probable cause did not exist, suppression as to the cameras surveilling the homes only may be allowed. 

Commonwealth v. Mora, SJC 12890 (August 6 2020)

  

 

 

 

 

Who’s Zoomin’ Who? Pandemic’s Videoconferencing Darling’s Security Failures Alleged to Have Permitted Data Breaches With Each Use

Cullen, et al.  v. Zoom Video Communications, Inc.,  No. 5:20-cv-02155-SVK (N.D. Cal.). Class action complaint filed March 30, 2020.

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)  Class action complaint filed March 31, 2020. 

Motion to consider cases to be similar filed in the Cullen case on April 8, 2020.  


Videoconferencing exploded exponentially with the COVID-19 pandemic, as a declaration of national emergency and state and local stay-at-home orders inspired ingenuity in communications for business, personal, health and other reasons.  

“Zoom,” as the platform is known, emerged as a most popular platform, somehow almost immediately eclipsing other platforms such as Google Meet.

In signing on to use Zoom, Zoom represented to users that their privacy interests would be protected.  For health care practitioners, Zoom permitted the creation of business associate agreements that would, ostensibly, aid in attaining compliance with the Health Insurance Portability and Accountability Act (HIPAA).

All to the good, one might think.

Except Zoom seems to have been incorrect in its privacy and data assurances.

Zoom’s application sent data identifying the user to Facebook every time the application was downloaded and every time the user logged in.

This discovery irked more than health care providers, for whom the federal government’s relaxation of compliance requirements for telehealth during the COVID-19 crisis did nothing to relieve providers of ethical obligations to clients to maintain confidentiality.

Likewise distressed were non-professionals whose functioning depends on assurances of confidentiality.

Along with disclosures about the software insecurity came a flood of pranksters practicing “zoom bombing,” interrupting online meetings with pornography and toxic messaging.  Some churches were not amused. 

Within days of discovery and disclosure two class actions were filed in federal court in the Northern District of California.  The complaints allege violations of several consumer and privacy protection statutes and aver that even if Zoom Video Communications remedies its technology, it remains responsible for the damage incurred prior to that time.

Since disclosure, Zoom has launched a campaign to underscore its innocence, its concern, and its plans for repair.  Many of the statements come quite close to admissions, perhaps reflecting the confidence of technology scions who are, in their own minds, intent on doing good and refraining from being evil.

Or perhaps Zoom believes that it has so captivated the market that all it needs to do is to appear contrite, fix the application, and move on.  

Simple, but time-honored, security measures not prevalent in the past have come to be required, such as passwords.

And Zoom has hired Facebook’s former security chief to head Zoom’s mitigation maneuvers. 

At this time, it does not appear that Facebook has acknowledged any relationship with Zoom nor is it known whether or how much money was paid to Zoom for user information.

At the same time, Facebook is taking steps to persuade some of the market to use Facebook’s platform rather than Zoom’s.

In addition to private lawsuits, it appears that the Federal Bureau of Investigation and state attorney generals have questioned Zoom’s practices. 

Cyberspace privacy concerns and pointers for managing Zoom have been proffered by non-profits such as the Electronic Frontier Foundation.

The class actions are in their early stages.  With courts either shuttered or (ironically) reliant on videoconferencing for proceedings, it is not known when or if the court will rule on the recently filed motion to treat the Cullen and Taylor cases as related.  An initial case conference in Cullen is scheduled for June 30, 2020.  


Northern District of California Case Information

Cullen, et al. v. Zoom Video Communications, No. 5:20-cv-02155-SVK (N.D. Cal.).

Taylor, et al. v. Zoom Video Communications, Inc., No. 5:20-cv-02170 (N.D. Cal.)

Related Media

iMore.com, March 27, 2020: Responding to Backlash, Zoom Stops Sharing User Data with Facebook

New York Times, March 30, 2020: Attorney General Looks Into Zoom’s Privacy Practices

Zoom Blog, April 1, 2020: A Message to Our Users

Forbes, April 2, 2020: Why Zoom Really Needs Better Privacy: $1.9M Orders Show the Government’s COVID-19 Response is Now Relying On It

Electronic Frontier Foundation, April 4, 2020: Harden Your Zoom Settings to Protect Your Privacy and Avoid Trolls

Motley Fool, April 4, 2020: Facebook Wants to Take a Bite Out of Zoom Video’s Growth

Wall Street Journal, April 4, 2020: Zoom CEO: “I really messed up,” on Security as Coronavirus Drove Video Tool’s Appeal

Boston.com, April 7, 2020: Massachusetts Schools, Churches, Have Been Targeted by Hackers on Zoom

Forbes, April 8, 2020: Zoom Brings on Former Facebook Security Head to Fix Privacy Problems

 

 

 

 

 

Massachusetts Trial Court Considers the Constitutional Contours of End of Life Care

Kligler and another v. Attorney General Maura T. Healy and another, No. 2016-03254-F (December 31, 2019)


Two physicians, one terminally ill and one whose practice includes care for the terminally ill, sought declaratory relief upholding as constitutional the prescription of fatal doses of medication for patient self-administration, called Medical Assistance in Dying (MAID) and upholding as constitutional discussion of such assistance and referrals to sources competent and capable of providing such prescriptions.

The physicians were wholly successful in obtaining, with no opposition from the state, the court’s opinion that the discussion of assistance in dying and the making of referrals to obtain such assistance is protected by the First Amendment.  In that no prosecution is likely to ensue from such discussions, the court declined to enjoin the state from so doing.

The court declined to find the characterization of medical assistance in dying as involuntary homicide to be unconstitutional or to find the application of involuntary manslaughter statutes to such aid to be unconstitutionally vague.  The United States Supreme Court has twice stated that substantive due process principles do not protect a physician’s right to participate in assisting in dying. Moreover, concepts of criminal law have long traditions leaving no one to guess what is proscribed within the meaning of “involuntary manslaughter.”

In the absence of a fundamental constitutional right, the state need only show that the prohibition of prescriptive assistance in dying serves and is reasonably related to an important government interest.  The preservation of life, the prevention of suicide, the protection of vulnerable populations, and the maintenance of sound medical practices and ethics are such interests, the court observed. In light of the irrevocability of administration of fatal medications, the court concluded that the proscription against such prescriptions is not unreasonable.

The court rejected the physicians’ arguments that a patient’s ingestion of the fatal doses of medications would serve as an intervening cause of death, relieving the physician of liability, where death is the known outcome at the time of issuing the prescription.  Nor was the court persuaded that the absence of coercion could change the result where, as before, death would be the known and intended outcome of the act of prescription.

The court likewise rejected equal protection challenges, observing that the law can and does respect the privacy and autonomy rights that attach to the refusal of medical treatment while concomitantly finding no corollary in any right to administer death.  Moreover, the active prescription of lethal doses of drugs differs from the permissible cessation of extraordinary treatments, the voluntary cessation of eating and drinking, or the provision of palliative pain management. The first produces death as a result of active physician intervention,  while the latter permits death to ensue as a natural result of underlying disease or debility.

The trial court noted that as social thought changes, so too may the law.  The trial court articulated its decision according to current precedent, yet noted change has occurred in the thirty years since the controlling decisions issued.  Of equal if not greater importance, the court concluded, the determination of the parameters of end of life care are not best addressed by the courts, but should be undertaken by the legislature.  

2019 12 31 Kligler v. Healy (Suffolk Sup. Ct.)

Communications Breakdown: Political Consultants and the United States Both Sought — and Obtained — Certiorari Review of the Constitutionality of Exceptions to the Federal Ban on Automated Cell Phone Calling

William P. Barr, Attorney General, et al. v. American Association of Political Consultants, No. 19-631.  Petition for Certiorari granted January 8, 2020.


The near-universal adoption of cell phone telephony thirty years ago ushered in a new era of liberation from landline tethers, but not of freedom from unsolicited, unwanted, and not infrequently noisome automated calls and messages.  Called (among other things) robo-calls, the perceived nuisance of such practices by telemarketers and others prompted Congress to enact the 1991 Telephone Consumer Protection Act, Pub. L. No. 102-243, 105 Stat. 2394.  

The TCPA prohibits calling cell phones without consent absent an emergency.  This gesture of federal consideration of individual interests has spawned a cavalcade of lawsuits challenging its meaning, including the instant case, in which certiorari was granted to determine whether an exception to the act which permits calls to collect a federal or federally guaranteed debt violates the First Amendment Free Speech Clause.   

The Fourth Circuit, in an opinion issued in April, 2019 perceived that the TCPA and its government debt exception created constitutionally unacceptable content based restrictions but did not conclude that the entire statute was invalid, determining only that the federal debt exception ought to be severed and the rest of the statute left intact.

The federal government asserts that there is no First Amendment violation, as strict scrutiny analysis does not apply where the economic purpose of a federal debt call is grounded in the relationship between the federal government and a debtor and where the privacy protections foundational to the TCPA remain intact.  Government speech not constrained by the First Amendment, should not be hamstrung by imposing the highest level of constitutional scrutiny where in essence commercial speech, subject only to limited review, is in issue.

The federal government argues that severability is wholly appropriate as the entire statute need not be done away with in order to address an exception to its general applicability.  

The American Association of Political Consultants’ views are diametrically opposed on both grounds.  The group asserts that it defies reason to classify debt collection calls as “purpose” based where the content of such calls is grounded in satisfying a debt.  Where calls linked to federal debts are permitted and those linked to private debts are not, this, the association advocates, makes a distinction based on the content of calls.  

It cannot be that severability is apt where the Fourth Circuit found the statute to be unconstitutional, the political consultants submit.  Severing an exception to an unconstitutional statute works no remedy, they argue.

A scheduling order has not yet been published.  There are two other petitions for certiorari pending in on related issues for which no action has been taken.

Petition for Certiorari: Barr, Attorney General, et al. v. Am. Assoc. of Political Consultants

Respondents Brief in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

Petitioners’ Reply in Support of Certiorari: Barr, Attorney General, et al. v. American Association of Political Consultants

 

Compelling Convict to Disclose Sexual History Within State Interest in Public Safety

State v. Alvarez, No. No. 35567-5-III, Wash. Ct. App., September 17, 2019. (Unpublished).


Alvarez, convicted of rape of a child, cannot prevail on a his claim that the requirement that he notify the state of his current sexual partners and disclose his sexual crimes to partners violates his First Amendment rights. The state may impose restrictions in order to accomplish lawful ends.  Alvarez is not restricted in his freedom of association, although his privacy is affected.  That privacy interest may be compromised where the state has a legitimate interest in alerting the public about potentially dangerous individuals.  The disclosures required reasonably serve that end.

State v. Alvarez (Wash. App., 2019)

Some Friend! Facebook Gun Photo Not Suppressed, Even Where “Friend” Turned Out to Be a Detective

Everett v. Delaware, No. 257.  Supreme Court of Delaware, May 29, 2018.


Everett was indicted for unlawful firearm possession after a detective, using a false profile, became Everett’s Facebook “friend,” which enabled his observations of Everett’s posted media showing his nightstand displaying a gun.  Everett moved to suppress the evidence, claiming that the detective’s monitoring of his Facebook page violated the Fourth Amendment. The Supreme Court of Delaware rejected this challenge, holding that a Facebook user has no reasonable expectation of privacy that Facebook information will not be passed along.  False friendship, gossip, and unwanted sharing of information are recognized hazards of human social interaction. “Friends” are always free to pass information along, whether or not the disclosing party wishes. The Fourth Amendment does not protect information voluntarily disclosed to an accepted “friend,” whether in person or online.

Similarly, the court rejected the notion that there needed to be evidence of wrongdoing before the detective initiated the ruse:  there is no constitutional protection against a misplaced belief that shared evidence of wrongdoing will not be disclosed.  

Everett v. State (Del., 2018)