United States v. Tuggle

United States v. Tuggle

Opinion

 [*509]  Flaum, Circuit Judge. One day, in a not-so-distant future, millions of Americans may well wake up in a smart-home-dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them.

These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples' everyday routes and deviations therefrom. Upon arrival at their workplaces, [**2]  schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans' occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more.

The setting described above is not yet a total reality. Nonetheless, we are steadily approaching a future with a constellation of ubiquitous public and private cameras accessible to the government that catalog the movements and activities of all Americans. Foreseeable expansion in technological capabilities and the pervasive use of ever-watching surveillance will reduce Americans' anonymity, transforming what once seemed like science fiction into fact. Constitutionally and statutorily mandated  [*510]  protections stand as critical bulwarks in preserving individual privacy vis-à-vis the government [**3]  in this surveillance society. To date, however, such measures have been challenged by the pace of technological developments.

The Framers of the Constitution sought "to place obstacles in the way of a too permeating police surveillance." United States v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 92 L. Ed. 210 (1948). That central aim animated their efforts, embodied in the Fourth Amendment to the Constitution, to preserve the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." For most of our country's history, the concept of a "search" was tied to common-law trespass, in other words, physical touch. Over time, however, the evolution of technology raised complicated questions regarding the appropriate interpretation and scope of the Fourth Amendment. Chief among those questions: What constitutes a search in a digital society whose technology empowers near-perfect surveillance without the need for physical touch?

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