The case of Borg v. Town of Westport
Geo-tracking smartphones. Cameras everywhere. Social media surveillance.
Whether it’s the government intercepting a terrorist for your protection, or google tracking your searches, technology and the national security state it supports is at war with your privacy- and the civil liberties that protect it.
Some say, if there’s nothing to hide, then let the gov- ernment surveil away! Then why not save time and just remove your curtains, the lock on your bathroom, your smartphone password, or what you say to your doctor behind closed doors? Because permitting the government to record and archive your conduct, legal or not, gives it cart blanche to broadcast your private life anytime, anywhere, and to any end it desires- even years down the road. It turns out that ordinary citizens value their privacy. That’s why we still have curtains, locks, passwords, and confidentiality agreements.
Consider the Borgs, husband and wife psychologists who operated a private practice out of their Westport, Connecticut home. The Borgs were caught in an ugly legal battle with their neighbors over a property easement. After noticing cameras pointed at their home from two neighboring homes, and being periodically adjusted by police officers, they filed a Freedom of Information request. They learned that the Westport Police Department was indeed conducting continuous surveillance of their home, hoping to catch criminal conduct and use it against them.
All of this was done without a warrant.
We brought suit against Westport and its police department in the U.S. District Court in Hartford under the Federal Civil Rights Acts, claiming that such invasive surveillance required a search warrant pursuant to the Fourth Amendment of the United States Constitution’s Bill of Rights. The 54 words which make up the Fourth Amendment are the heart of the Bill of Rights and its protections against government overreaching:
“The right of the people to be secure in their persons, house, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Westport promptly filed a Motion to Dismiss, arguing the Fourth Amendment was not applicable since the camera itself was not trespassing, and the surveillance was done from a physically non-invasive location (a second floor window). Using a handful of old Supreme Court cases, they argued the government has the right to surveil citizens in public areas or locations where there is no property interest. They cited the “open field” doctrine, first established in the 1924 case Hester v. United States, which found that a plane can fly over a home and surveil curtilage without invoking a Fourth Amendment “search.” They also used Goldman v. United States, a1942 case where the Court found no “search” when police officers used a Dictaphone pressed against an adjoining wall to listen to a conversation.
Our rebuttal drew on two landmark privacy cases: Katz v. United States, 1966; and United States v. Jones, 2012. Katz was convicted of transmitting wagering information by phone, a federal offense. But after it was discovered that his phone conversations were being secretly recorded with an external device, the Supreme Court agreed to hear the matter. In this case, the Court’s decision famously expanded the scope of the Fourth Amendment to “protect people, not places.”
In United States v. Jones, the Court found that the warrantless attachment of a GPS device to a car violated Fourth Amendment privacy and property protections, since it was prolonged, continuous, and electronic. From Supreme Court Justice Sotomayor’s opinion:
“Awareness that the Government may be watching chills... freedoms. And the Government’s power to assemble data that reveal private aspects of identity is susceptible to abuse... Being watched can destroy a person’s peace of mind, increase her self-consciousness and uneas- iness to a debilitating degree and can inhibit her daily activities... An important dimension of privacy is informational control, which does not readily translate into spatial terms.”
I presented arguments to Hartford Connecticut Federal Judge Alvin Thompson. Since Katz and Jones, nearly every federal trial court has ruled that covert, continuous, electronic surveillance of a home violates the Fourth Amendment and requires a warrant. Despite this, the Court ruled against us, resting its opinion on the same line of old Supreme Courts cases, failing to consider the core issue of privacy invoked by continual, covert, electronic surveillance.
We immediately took our case to the Second Circuit Court of Ap- peals in New York City, the most highly-regarded federal appellate circuit court in the country, known for shaping constitutional law second only to the Supreme Court.
Argument day dawned dark and rainy; a disquieting omen of what ensued. Today, the case rested on a three-judge panel. My heart sank when I saw the senior member of the three-judge panel, a jurist with a well-known record of prioritizing security over privacy who also sat on the FISA Court (federal Intelligence Surveillance Act), a secret panel of conservative judges that hears rare appeals of surveillance court proceedings.
Suddenly, everything hinged on the judges that flanked him.
The first judge proceeded with a stream of openly dismissive “questions” as to why a warrant would even be required since there was no trespass, and the Borg’s home interior could be viewed from outside their property line anyway. He even went on to state that should a police officer position himself on the neighbors building for 13 weeks in place of the camera there would be no search. I referred to the district courts across the country, all finding that continuous, electronic, home surveillance constituted even more invasive surveillance than say, a stake-out since the information could be stored, manipulated, and disseminated to millions with a single click. He responded that district court decisions were not worthy of consideration. I pointed out that the only other federal appellate court to rule on continuous, electronic, home surveillance found it prohibited under the Fourth Amendment absent a warrant. But it made no difference.
In stark contrast, the second judge proceeded with a series of leading questions that essentially argued my case for Fourth Amendment protections; even making multiple references to Justice Sotomayor’s Jones case opinion. Before I knew it, I was a bystander watching two opposing justices debate privacy. The senior judge said more with his eye-rolling than his tongue, throwing just one question to the defense about why he had not raised sovereign immunity (a technical defense that shields government from liability when the legal rule is not known).
When the defense rightfully replied that sovereign immunity had no place here, the senior judge nonetheless suggested that he consider raising it in future cases.
The panel was both confusing and confused; I left nonplussed.
Three weeks later, the Court denied our appeal in a terse, two-page decision that relied exclusively on the so-called “open-fields” doctrine. No mention was made of violating the Borg’s privacy inside their home, a place expressly protected by the Fourth Amendment. Nor was any reference made to the stunning 13 weeks of surveillance, by far the longest in any federal court decision. Equally distressing, the Court relied on United States v. Davis, where a police officer, inside a home legally, took pictures of the defendant with a body cam — completely contrary to our case.
We filed a petition for a hearing “en banc”, requesting review by all sitting appellate judges. I was confident that outlier judges would offer a non-biased view. I was wrong and our petition was denied.
“Big brother is watching you.” With cameras installed every- where from stoplights to checkouts, George Orwell’s prophetic words are now our daily reality. And though we no longer expect anonymity in public, government surveillance is about more than collecting information you are willing to share, like crossing a street or buying milk. The danger lies in collecting and storing the information that you do not know you are sharing, like talking with a spouse in your kitchen or texting with your family. When the Government has the power to observe anyone at anytime, we become a society of fearful, repressed citizens, afraid to deviate from the party line, to make a mistake, and to just be ourselves.
In their brilliance, the founding fathers understood this and formulated the Fourth Amendment to protect against “unrea- sonable searches and seizures.” They never dreamed of digital video surveillance. That’s why they crafted the Constitution with the purposely ambiguous language “unreasonable;” allowing — even requiring — that each generation interpret it in a way suitable to their times.
Privacy is an essential human right. It is the bedrock of freedom. Without privacy, our creativity, our exploration, and our very development as individuals is denied. Supreme Court Justice William O. Douglas said it best: “The right to be left alone is the beginning of all freedom.” That’s why we have appealed our case to the United States Supreme Court.
And we will press on.