abstract. This Essay analyzes the implications of the Supreme Court’s denial of certiorari in Tuggle v. United States, a Seventh Circuit opinion upholding law enforcement’s warrantless, eighteen-month pole-camera surveillance of a criminal suspect’s home. By declining to take up the case, the Supreme Court missed an opportunity to update its outmoded Fourth Amendment search doctrine. That doctrine has failed to evolve alongside modern surveillance technology and has been inconsistently applied by lower courts. Taking a privacy-rights-focused view, this Essay suggests and evaluates alternative avenues for protecting civil liberties in the wake of the Court’s refusal to do so. Promising alternative paths for civil-rights advocates include strategic litigation in state courts centering a “mosaic” theory of surveillance as well as legislative advocacy in favorable state and local jurisdictions.

introduction

On February 22, 2022, the Supreme Court declined to review the Seventh Circuit’s decision in Tuggle v. United States.1 That denial effectively upheld the Seventh Circuit’s holding that law enforcement’s warrantless, prolonged video surveillance of a person’s home did not violate the Fourth Amendment.2 The facts of Tuggle resemble many recent prolonged pole-camera surveillance cases. Tuggle, a civilian believed to be distributing methamphetamine, was targeted for extensive surveillance by law enforcement.3 Without obtaining a warrant, federal law-enforcement agents erected three pole cameras offering varying views of the exterior of Tuggle’s home.4 Effectively a round-the-clock, unmanned stakeout, the cameras captured footage of Tuggle’s home for approximately a year and a half.5 Both the District Court for the Central District of Illinois6 and the Seventh Circuit7 held that the surveillance was lawful under the Fourth Amendment. In 2021, Tuggle petitioned for the Supreme Court to hear the case.8 In February 2022, the Supreme Court declined Tuggle’s petition.9

The Supreme Court’s abdication has left lower courts to wrestle with uncertain Court precedent. For example, shortly after the Court denied certiorari in Tuggle, the First Circuit in United States v. Moore-Bush narrowly upheld the long-term pole-camera surveillance of a person’s home on good-faith exception grounds.10 Illustrating the confusion caused by the Court’s current approach to new surveillance technology, the en banc panel of judges in Moore-Bush was evenly divided in how it interpreted recent Supreme Court surveillance precedent.11

The Founders recognized the significance of privacy from state encroachment.12 Modern surveillance technologies, however, would not only be unimaginable to those alive at the time of the Founding—the evolution and proliferation of surveillance technologies in recent years has outpaced even modern legal thinkers. Government actors can increasingly achieve precise and detailed surveillance cheaply and through indirect means. For example, they can now purchase sensitive data captured by ordinary, ubiquitous technologies like smartphone applications.13 Elective private surveillance is also a growing trend, with personal doorbell cameras becoming increasingly affordable and popular.14 At times, government agencies can tap into these private surveillance systems—widening their monitoring capacity even further.15

Pole-camera surveillance, at issue in Tuggle and Moore-Bush, has also evolved rapidly and will likely continue to evolve.16 Pole cameras today include features like night vision and thermal detection, and functions like pan, tilt, and zoom are increasingly being automated using artificial intelligence.17 Modern pole cameras can also produce remarkably precise images, including capturing “the lettering on the side of an aircraft from eleven miles away” or a “serial number . . . [viewed] from 100 feet away.”18 Sophisticated analytical technology can also be integrated into pole cameras or applied to footage on the back end. Law enforcement is already developing, marketing, and purchasing software that can recognize faces, read text and license plates, identify objects, and filter through hours of footage.19 Video analytical software currently on the market boasts capabilities like combing through and organizing footage to “show[] every pedestrian or vehicle that appeared at [a] location across many hours . . . within minutes.”20

The marginalized are disproportionately vulnerable to all these surveillance tools. This is in part because marginalized communities, particularly communities of color, are overpoliced and overcriminalized.21 It is also because marginalized groups, particularly low-income people, are more likely to live in environments where physical privacy is inaccessible.22 Many large communities of color in the United States are in metropolitan areas with relatively denser populations.23 In cities where densely packed businesses have security cameras that may be accessed by law enforcement,24 and where most people live in multi-unit housing without the benefit of large swathes of land and fences, achieving physical privacy requires extraordinary resources—if it is even possible.

The Supreme Court’s decision not to review Tuggle could leave these vulnerable communities—and, indeed, all American residents—virtually unprotected in the face of rapidly evolving surveillance tools and dwindling privacy safeguards. This Essay analyzes the aftermath of the Supreme Court’s denial of Tuggle’s petition for certiorari and explores potential paths for achieving privacy protections against the kind of prolonged pole-camera surveillance endured by Tuggle. Part I discusses surveillance’s connection to policing and disproportionate impact on marginalized communities. Part II examines the recent Fourth Amendment jurisprudence that serves as a backdrop for the legal question at issue in Tuggle. Next, Part III analyzes the facts of Tuggle and the district-court and Seventh Circuit decisions. Finally, Part IV discusses alternative advocacy opportunities in the absence of Supreme Court action.

I. surveillance: a policing tool with disproportionate harms

Surveillance is a tool of policing and, more broadly, state control.25 The government agencies that employ surveillance tools are almost always law-enforcement agencies or other government entities that maintain state control—state and local police; federal law enforcement like the Federal Bureau of Investigation (FBI)26 or Immigration and Customs Enforcement (ICE);27 or other government security agencies like the Department of Defense28 or the National Security Agency (NSA).29 Indeed, Tuggle himself was surveilled by the FBI as part of a law-enforcement investigation into his alleged criminal misconduct.30

Fundamentally, policing and surveillance, as methods of state control, are restrictions on liberty.31 Privacy is an essential right, and the encroachment of that right is a harm in and of itself.32 But even beyond the injury of this encroachment, being subjected to government surveillance produces other harms as well, including economic, emotional, physical, and relational harms.33 These harms disproportionately impact minorities and marginalized communities.34

Communities with high proportions of minorities are more likely to be widely surveilled. For example, a study by Amnesty International found higher concentrations of “facial recognition compatible CCTV cameras” in New York City neighborhoods with “higher . . . proportion[s] of non-white residents.”35 Similar patterns exist in other cities and with other surveillance technologies. In 2016, reports revealed Baltimore was disproportionately operating cell-site simulators in predominantly Black neighborhoods.36 Further, in the last few years, federal law-enforcement agencies—including the Department of Homeland Security (DHS) and FBI—as well as local police departments have also targeted Black Lives Matter and other racial-justice protests using surveillance.37 Government surveillance of Black activists is, of course, not a new phenomenon.38 Moreover, DHS agencies ICE and Customs and Border Protection have increasingly adopted surveillance technologies to investigate undocumented immigrants and migrants.39 And Muslims, as well as Middle Eastern, South Asian, and African immigrants, have been targeted with heightened levels of government surveillance in the years since the September 11 attacks.40

People of color and immigrant communities are also disproportionately criminalized,41 and their communities are generally more likely to be policed.42 Because surveillance is a tool of policing, it follows that more-policed communities—that is, marginalized communities—are generally more likely to be surveilled. For example, current law in the United States makes undocumented immigrants subject to detention and deportation.43 When police departments and ICE conduct investigations to find undocumented people, they employ surveillance as a tool in their investigations.44 If or when ICE detains an undocumented immigrant, ICE may subject them to additional surveillance.45 As these ICE investigations primarily target undocumented people and other members of immigrant communities, the surveillance tools they use also disproportionately affect undocumented people and immigrant communities. This connection between disproportionate criminalization and disproportionate surveillance exists in numerous other contexts involving marginalized people.46 The “War on Drugs,” for example, has notoriously impacted people of color disproportionately.47 Surveillance is certainly used for drug investigations (the surveillance of Tuggle himself is a prime example); it thus seems reasonable to assume that people of color also face disproportionate surveillance in the drug-criminalization context.

Because of the inequities in how surveillance is wielded, government surveillance threatens not only individual liberty, but also core principles of equality and justice. These realities are essential context for this Essay, as they may provide a clue into why protections against surveillance are outdated and weak and who must bear the bulk of the consequences of these deficiencies.

II. the legal backdrop to united states v. tuggle

The panel in Tuggle was faced with the task of applying and interpreting a string of Fourth Amendment cases stemming from the beginnings of the digital age. The Supreme Court has developed numerous doctrinal tests in the context of Fourth Amendment searches, all the while repeatedly communicating uncertainty (and concern) about the applicability of pre-digital-age Fourth Amendment rationales to uncharted territory. The Supreme Court’s struggle to adjust to the challenges of the digital age is perhaps most evident in the federal-circuit split that has emerged on the issue of prolonged pole-camera surveillance of a home. Prolonged pole-camera surveillance, as the term is used in this Essay, refers to government surveillance using a pole-mounted camera lasting for a period of approximately a month or longer. The prolonged nature of the surveillance reflects the large quantity of information gathered by the pole camera—a quantity of information that would otherwise be difficult or cost-prohibitive to gather through a traditional, manned stakeout. This Part discusses Supreme Court precedent on the topic of surveillance and describes the resulting divisions across circuit courts.

A. The Supreme Court’s Fourth Amendment “Search” Doctrine

The issue of prolonged pole-camera surveillance of a home intersects with several legal issues that the Supreme Court has tackled in the last few decades. Specifically, Tuggle implicates overarching Fourth Amendment doctrine, which governs an individual’s constitutional protection from warrantless searches. Under current Fourth Amendment doctrine, to trigger an individual’s Fourth Amendment rights, first, a person must have a reasonable expectation of privacy in a certain object or area; and second, a constitutional search of that object or area must occur.48

To find a reasonable expectation of privacy, the Supreme Court has recognized a two-part test from Justice Harlan’s concurrence in Katz v. United States.49 Under the test, a person has a reasonable expectation of privacy in something if, one, they have “manifested a subjective expectation of privacy” in it; and two, “society [is] willing to recognize that expectation as reasonable.”50 The Court has found that erecting a fence around one’s backyard easily fulfills the subjective requirement,51 but the Court has not required people to protect their homes from thermal imaging or take measures to prevent their phones from connecting to cell towers.52 Regarding the second, “objective” requirement, the Court has determined that “individuals have a reasonable expectation of privacy in the whole of their physical movements”53 and has repeatedly held that when the government surveillance is of a home, the objective expectation of privacy is “most heightened.”54

After determining that one has a reasonable expectation of privacy concerning an object or place, the second principal condition for Fourth Amendment protection is for a search to have occurred for constitutional purposes. Long-term pole-camera surveillance of a home implicates several different but overlapping wrinkles in Supreme Court doctrine: the issue of visual surveillance, a search of a person’s curtilage (the area surrounding one’s home), surveillance using advanced technologies, and surveillance that captures a large amount of information.

Supreme Court opinions in the last few decades have held that traditional visual surveillance is not a search that would trigger Fourth Amendment protections.55 But the Court has found that visual surveillance exceeding the capacities of traditional visual surveillance may constitute a search, especially if a home was surveilled. In Kyllo, the Court held that thermal imaging used by law enforcement on a home was a search because the technology was “not in general public use” and was used “to explore details of the home that would previously have been unknowable without physical intrusion.”56 Because thermal-imaging cameras are nonpublic technology used to uncover details from within a home, they crossed a threshold into an unconstitutional search. Importantly, however, the Court did not go so far as to hold that any new application of visual-surveillance technology would trigger Fourth Amendment protections. Instead, the Court preserved its 1986 decision in Dow Chemical Co. v. United States,57 in which it reasoned that “[t]he mere fact that human vision is enhanced somewhat [through the use of aerial photography] . . . does not give rise to constitutional problems.”58 It was the additional factors present in Kyllo—namely, the surveillance of a home’s curtilage—that “heightened” the “privacy expectations” and triggered Fourth Amendment protections.59

Other Justices have recognized an additional exception that can make an otherwise nonphysical surveillance a search: the extent of the information obtained. Here, the Court has begun to acknowledge a mosaic theory of the Fourth Amendment.60 A mosaic theory of the Fourth Amendment posits that when surveillance captures a large amount of information, such that the aggregate of that information is far more revealing than “the sum of its parts,” that surveillance becomes a Fourth Amendment search.61 Justice Alito implicitly recognized the theory in his concurrence in Jones, where the duration of the GPS surveillance at issue in that case—twenty-eight days—mattered far more than the physical trespass of the GPS tracker itself.62 Similarly, Justice Sotomayor’s concurrence in the same case emphasized the “precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” as critical factors that made the GPS tracking a search, in addition to the physical intrusion.63 In 2018’s Carpenter v. United States, the majority opinion applied Jones to cell-site location surveillance, holding that, much like in Jones, the information obtained through the cell-phone surveillance was “detailed, encyclopedic, and effortlessly compiled.”64

B. Federal Circuit Split and Other Lower Court Interpretations of the Doctrine

Lower courts have recently struggled to apply Supreme Court precedent uniformly to contemporary surveillance cases. Specifically, courts have wrestled with outdated Supreme Court guidance on visual surveillance when examining modern, digital visual surveillance. Courts have also grappled with defining and applying the mosaic theory of surveillance, struggling to determine how much weight the amount of information collected should receive in determining whether a search occurred.

The federal courts of appeals have split on the issue of whether long-term pole-camera surveillance of a person’s home or curtilage constitutes a Fourth Amendment search.65 In 1987, the Fifth Circuit held in United States v. Cuevas-Sanchez that continuous, two-month-long pole-camera surveillance of a person’s backyard constituted a search.66 The longevity of the surveillance was especially significant, as it rendered the surveillance distinct from what a “casual observer” might witness.67 By contrast, the Sixth Circuit in United States v. Houston68 held the opposite: that a ten-week pole-camera surveillance of a home was not a search, no matter the length of the surveillance, because the camera “captured the same views enjoyed by passersby on public roads.”69 Similarly, in United States v. Jackson, the Tenth Circuit held in 2000 that the warrantless pole-camera surveillance of a person’s houses did not violate the Fourth Amendment since the cameras observed only the exterior of the houses.70 United States v. Moore-Bush,71 discussed below,72 is the latest in a string of divided federal appellate decisions concerning the applicability of the Fourth Amendment to prolonged pole-camera surveillance.

In other recent decisions involving extensive and long-term surveillance using new technologies, courts have applied a version of the mosaic theory by considering the magnitude of information collected. For example, in Leaders of a Beautiful Struggle v. Baltimore Police Department, the Fourth Circuit issued an en banc decision holding that a program involving aerial surveillance of a city likely violated the Fourth Amendment.73 The Fourth Circuit interpreted Carpenter as “solidif[ying] the line between short-term tracking of public movements . . . and prolonged tracking that can reveal intimate details through habits and patterns.”74 It thus mattered to the Fourth Circuit that the aerial surveillance at issue was “detailed, encyclopedic,” and “retrospective.”75 After considering the aggregate of information collected by the visual surveillance program, the Fourth Circuit held that plaintiffs were likely to succeed in their claim that the surveillance violated the Fourth Amendment.

III. united states v. tuggle

Between 2014 and 2016, FBI agents used three pole cameras to monitor Travis Tuggle’s home. Two of the cameras were aimed at the front of Tuggle’s home and driveway. The third camera captured both the outside of Tuggle’s home and a codefendant’s shed.76 Though the cameras captured imagery of Tuggle’s property, the cameras themselves were physically located on public property, mounted to utility poles in an alley and on a street.77 Tuggle’s home was in a residential neighborhood in an Illinois city, and his house had no fence or other physical obstruction blocking it from view.78

Footage from the pole cameras supplied evidence the FBI would use to indict Tuggle on “conspiracy to distribute and possess with intent to distribute methamphetamine.”79 The cameras provided twenty-four-hour coverage, with “[r]udimentary lighting technology” assisting the cameras in night hours.80 The cameras were operable remotely, and agents could pan, tilt, and zoom the cameras while observing footage in real time.81 In addition to providing a live video feed, footage was also stored at an FBI office and available for historical review.82 The video footage provided the basis for search warrants that, in turn, facilitated Tuggle’s two indictments.83

A. Tuggle: The District-Court Opinion

Prior to his trial, Tuggle filed a motion to suppress evidence from the pole cameras, “arguing that use of the cameras constituted a warrantless search in violation of the Fourth Amendment.”84 The district court first held that the surveillance of Tuggle’s home, not being a “physical intru[sion]” onto the property, was not necessarily a search.85 Next, applying Kyllo, the district court held that since Tuggle had not “attempt[ed] to obscure his driveway or residence from public view,” he had not “manifested” a subjective expectation of privacy and no subjective expectation of privacy was reasonable.86

Seemingly critical to the district court’s decision to deny Tuggle’s motion were three major understandings of the pole-camera surveillance used on Tuggle. First, because the cameras could only capture footage of the exterior of the house, they “only captured what would have been visible to any passerby in the neighborhood.”87 Second, unlike the cell-site location surveillance at issue in Carpenter, “the surveillance here used ordinary video cameras that have been around for decades.”88 Third, the long-term character of the pole-camera surveillance did not make it a search since, unlike the GPS surveillance at issue in Jones, the pole-camera surveillance of Tuggle was “limited to a fixed location and capture[d] only activities in camera view.”89

Tuggle filed a motion to reconsider and a second motion to suppress the pole-camera evidence in 2019, both of which the district court denied.90 Tuggle entered a conditional guilty plea, “reserving his right to appeal the court’s denials of his motions to suppress.”91 After sentencing, Tuggle appealed the denials of the motions to suppress to the Seventh Circuit.

B. Tuggle’s Appeal and the Seventh Circuit Decision

Tuggle advanced two principal arguments in his appeal to the Seventh Circuit: first, that warrantless pole-camera surveillance of his home violated the Fourth Amendment; and second, that the “long-term, warrantless surveillance over a period of approximately eighteen months’ amounted to a Fourth Amendment violation” under the mosaic theory.92 Considering each element of Tuggle’s appeal, the Seventh Circuit applied Katz’s two-part test; the court inquired whether Tuggle “manifested a subjective expectation of privacy” and whether “society [is] willing to recognize that expectation as reasonable.”93

Applying the two-part test to Tuggle’s first argument, the Seventh Circuit held that Tuggle “clearly” had not manifested a subjective expectation of privacy since he had not acted to “shield his yard or driveway from public view.”94 After considering the objective prong of the test, regarding the reasonableness of Tuggle’s expectation of privacy, the court held that the use of pole cameras to observe the exterior of the home did not constitute a Fourth Amendment search.95 The court reasoned that the pole cameras used on Tuggle’s home “undoubtedly g[a]ve [the government] more detailed information than naked-eye views” but “did not do so to a degree that ‘g[a]ve rise to constitutional problems.’”96 While the court did not provide clear guidance as to which technological capabilities would produce “constitutional problems,” the court noted several mitigating factors from Tuggle’s case: the pole cameras were “only used . . . to identify who visited Tuggle’s house and what they carried, all things that a theoretical officer could have observed without a camera;”97 the technological features of the pole cameras used are features available for general public use;98 and the cameras did not “penetrate walls or windows” and thus did not capture confidential information or access “details of the home . . . unknowable without physical intrusion.”99

The Seventh Circuit next considered Tuggle’s argument “that the prolonged and uninterrupted use of [the pole] cameras constituted a search.”100 The Seventh Circuit considered this argument as advancing a “mosaic theory,” wherein Tuggle was arguing that the surveillance he endured constituted a search because “when it comes to people’s reasonable expectations of privacy, the whole is greater than the sum of its parts.”101 The Seventh Circuit acknowledged that the Supreme Court and other circuits have applied the mosaic theory in Fourth Amendment opinions, including the Supreme Court’s majority opinion in Carpenter.102 But the Circuit expressed skepticism of the theory’s merits and concluded that there was no “binding caselaw indicating that [it] must apply the mosaic theory.”103 Even under the mosaic theory, the Seventh Circuit argued, the pole camera footage was “far from capturing the ‘whole of his physical movements,’” as it only captured footage of Tuggle’s home.104 The Seventh Circuit went on to write—in contrast with a Fourth Circuit decision published less than a month before the Tuggle opinion105—that because the pole-camera footage obtained by law enforcement was limited to the period of surveillance, the surveillance was “real-time” and distinct from the historical cell-site location information at issue in Carpenter, which involved “tap[ping] into an expansive, pre-existing database.”106

Despite finding the surveillance constitutional, the Seventh Circuit concluded its opinion with a note of caution, stating that it was “not without unease about the implications of [the pole-camera surveillance used on Tuggle] for future cases. The eighteen-month duration of the government’s pole camera surveillance . . . is concerning, even if permissible.”107 The issue of duration, the court wrote, poses a “line-drawing problem” that the Seventh Circuit was not comfortable deciding.108 The Seventh Circuit further issued a warning about the advancement and expansion of surveillance technologies and the relative weakness of present Fourth Amendment jurisprudence. “It might soon be time to revisit the Fourth Amendment test established in Katz,” the court wrote, calling on the Supreme Court and Congress to serve as decisive regulators of this developing issue.109 Despite this urgent call to action, the Supreme Court denied certiorari.110

C. Moore-Bush: The Aftermath of the Tuggle Cert Denial

The consequences of the Supreme Court’s denial of certiorari for Tuggle are perhaps most obvious in United States v. Moore-Bush, where the full First Circuit split on the application of Carpenter to prolonged pole-camera surveillance of a home.111 While unanimous in its ruling, the First Circuit was divided in its interpretation of Carpenter, producing two concurring opinions and no majority. Half of the en banc panel supported a holding that prolonged pole-camera surveillance required a warrant under Carpenter,112 and the other half was staunchly opposed.113

The judges differed in their interpretations of whether Supreme Court precedent generally prohibits warrantless prolonged surveillance. Chief Judge Barron, Judge Thompson, and Judge Kayatta interpreted the Supreme Court’s 2018 decision in Carpenter as “embrac[ing] something akin to the mosaic theory”114 and argued that Carpenter “support[s] . . . the conclusion that the government conducted a search.”115 Building on the Court’s reasoning in Jones, Barron, Thompson, and Kayatta interpreted Carpenter as distinguishing between the “practical limits” of “a single-point stakeout” in the predigital age and the digital surveillance that now makes it possible to “effectively and perfectly capture all that visibly occurs in front of a person’s home over the course of months—and in a manner that makes all of the information collected readily retrievable at a moment’s notice.”116 Barron, Thompson, and Kayatta also addressed the Seventh Circuit’s Tuggle decision, dismissing the Seventh Circuit’s skepticism about mosaic theory and the Seventh Circuit’s concern about a “line-drawing problem” when analyzing the legality of pole-camera surveillance based on the “aggregate” of information revealed.117 Despite their reservations, the trio ultimately joined the other judges on the First Circuit panel in upholding the surveillance based on an application of the “‘good faith’ exception to the Fourth Amendment’s warrant requirement.”118

By contrast, Judges Lynch, Howard, and Gelpí interpreted Supreme Court precedent differently, determining that Carpenter did not apply to pole-camera surveillance.119 The judges pointed to the statement in Carpenter that its “decision . . . is a narrow one” and quoted Carpenter’s language that it did not “call into question conventional surveillance techniques and tools, such as security cameras.”120 Lynch, Howard, and Gelpí wrote that pole cameras are “plainly a conventional surveillance tool” of the sort to which the Supreme Court was referring in Carpenter. The judges also compared the fixed pole-camera surveillance of the outside of a home to the location-information surveillance at issue in Carpenter and found the facts distinguishable.121

Without recent Supreme Court guidance on pole-camera surveillance, the First Circuit panel was left to rely primarily on the Supreme Court’s decision in Carpenter—the facts of which concerned a different form of surveillance. The two groups of concurring judges came to opposing conclusions in their interpretations of Carpenter’s application to pole-camera surveillance and differed in their interpretations of privacy expectations for one’s curtilage. Decided after the Supreme Court declined to review Tuggle, the First Circuit’s divided stance exemplifies the confusion that lingers among the lower courts in the absence of clarity from the Supreme Court.

IV. alternative avenues for privacy protections

By failing to update its case law on pole-camera surveillance—and on evolving surveillance technology generally—the Supreme Court missed an opportunity to clarify and modernize its Fourth Amendment jurisprudence. The First Circuit’s recent difficulty in interpreting the Court’s doctrine with respect to prolonged pole-camera surveillance of a home is but one example of the consequences of this continued doctrinal ambiguity. If the parties in Moore-Bush petition the Supreme Court to review the First Circuit’s decision, the Court may get an additional opportunity to correct its inaction. Without federal judicial guidance, however, state-court litigation and legislative advocacy may serve as the most viable options for protecting privacy rights in the face of government pole-camera surveillance.

A. State Courts

Without favorable federal constitutional precedent on protections from warrantless pole-camera surveillance, litigation centered around state constitutional rights may be a way forward. The Massachusetts state courts, in particular, have issued notable and influential decisions applying the mosaic theory of surveillance. One recent decision from the Massachusetts Supreme Court weighed the extent of information collected in considering whether pole-camera surveillance constituted a search under the Massachusetts Constitution. In Commonwealth v. Mora, the Massachusetts Supreme Court held that five- and two-month-long pole-camera surveillances of the defendants’ homes were searches requiring a warrant under the Massachusetts Constitution.122 The court utilized the mosaic theory, in considering “whether the surveillance was so targeted and extensive that the data it generated, in the aggregate, exposed otherwise unknowable details of a person’s life.”123

Massachusetts’s constitution is not the only state constitution that provides protection analogous to the U.S. Constitution’s Fourth Amendment. For example, Section 6 of the state constitution of Illinois, Tuggle’s home state, provides protection against “unreasonable searches.”124 In addition to providing another forum for vindicating rights violated by prolonged pole-camera surveillance, state-level litigation may also be a way to create favorable precedent advancing the mosaic theory. This precedent may not only help litigants themselves realize their rights at the state level; it may also—in the absence of clear federal doctrine—help influence federal-court decisions as well. Indeed, Massachusetts’s mosaic-theory cases have been cited by federal courts—including in the Seventh Circuit’s Tuggle decision—as influential precedent.125

B. Federal Legislation

In the absence of Supreme Court action safeguarding privacy rights from long-term visual surveillance of a person’s home, federal legislation is a theoretically viable but practically unreliable alternative. Nevertheless, lessons from successfully enacted privacy laws and legislative proposals may provide clues for strategic federal advocacy.

1. Federal Privacy Laws: Recent History and Patterns

The United States is due for federal legislative action on privacy. The last notable federal law relating to privacy was the Fair and Accurate Credit Transactions Act of 2003, which provided consumers the right to free credit reports and implemented identity-theft protections.126 In the 1990s, Congress enacted the Telephone Consumer Protection Act,127 which regulated telemarketing and automated telephone communications; the Health Insurance Portability and Accountability Act,128 which protected patient health data; and the Children’s Online Privacy Protection Act,129 which protected children’s data privacy online. These statutes largely aimed to protect consumer privacy, or the public’s privacy from private actors. Federal legislation safeguarding the public’s privacy from government actors, however, has been much rarer.

The last significant federal statute that provided progressive privacy protection to the public from the government was the Electronic Communications Privacy Act (ECPA) in 1986, which restricted the government’s access to private digital communications.130 Since the 1980s, the protections of the ECPA have eroded as the data-broker industry has emerged—the ECPA does not prevent the government from accessing information from private sellers, who operate outside of the ECPA’s coverage.131 There have been several major attempts to update the ECPA in the twenty-first century, but none have been successful.132 Congressional failure to update the ECPA—despite several attempts to do so—reflects the challenge of passing protective privacy legislation in the twenty-first century.

Compared to consumer-privacy protections—the enactments of which have been few and far between in the last few decades—there have been even fewer federally enacted protections against government surveillance. Federal protections against government surveillance hit a low point with the passage of the USA PATRIOT Act in 2001, which severely expanded government surveillance authority to a degree some have argued was unconstitutional.133 In the two decades since the Act’s enactment, some of its most harmful surveillance provisions, particularly Section 215, have expired.134 Still, other elements of the PATRIOT Act have been extended.135 Indeed, it seems that in the last two decades, the only times Congress came to an agreement on government surveillance were the times it increased surveillance—sacrificing rather than upholding privacy rights.

In sum, Congress has been largely ineffective at protecting Americans’ privacy: it has failed to enact any privacy legislation recent in decades as it has expanded government surveillance capabilities. This recent past paints a grim picture for the future, as partisan legislative gridlock is likely even higher now than it was in the early 2000s.136 But as the need for new federal action on privacy continues to grow, partisan gridlock may not prove fatal to federal privacy legislation.

2. Recent Federal Privacy Policy Proposals and Actions

There have been several recent federal legislative proposals aimed at protecting data privacy. Some, such as the Fourth Amendment Is Not For Sale Act, have garnered significant support from advocacy groups,137 and others, such as the American Data Privacy and Protection Act, have made notable advances in congressional committees.138 Neither of these proposals, however, would directly address prolonged pole-camera surveillance. Nevertheless, the growing traction of certain privacy-legislation proposals—after a decades-long drought in enacted privacy laws—may point to a future where federal legislation protecting against prolonged pole-camera surveillance might be possible.

The most notable recent federal legislative privacy proposal is a bill called the American Data Privacy and Protection Act, the draft of which was first released in June 2022 by a bipartisan congressional coalition.139 While remarkably comprehensive, the bill predominantly addresses consumer privacy, setting forth a foundation for Federal Trade Commission-enforced regulations on technology companies—especially companies that deal with consumer data.140 As for privacy protections against government surveillance, the bill disappointingly proposes sweeping privacy exceptions for federal agencies in law-enforcement and national-security contexts.141 As such, this Act would be unlikely to directly protect against the type of surveillance faced by Tuggle.

Other promising federal proposals that do not directly fix the prolonged pole-camera surveillance problem nonetheless may reveal a growing appetite for privacy laws. These include Senator Kirsten Gillibrand’s Data Protection Act of 2020, which would establish an independent Data Protection Agency to protect data privacy.142 Also in 2020, Senator Ron Wyden and Representative Zoe Lofgren introduced the Safeguarding Americans’ Private Records Act. That legislation would reform the Foreign Intelligence Surveillance Act to end the NSA telephone-surveillance program, institute warrant requirements for government access of location and internet-browsing history, and strengthen the Privacy and Civil Liberties Oversight Board.143

In 2021, Senator Wyden, a Democrat, and Senator Rand Paul, a Republican, also introduced the Fourth Amendment Is Not for Sale Act.144 The legislation was cosponsored by a bipartisan group of eighteen senators and restricts government purchases of Americans’ data from data brokers. The legislation purports to close a legal loophole by which government officials can currently skirt around Fourth Amendment warrant requirements to obtain location and other private data from Americans.145 While this legislation does not protect against the pole-camera surveillance Tuggle experienced, it may provide some privacy safeguards for future targets of pole-camera surveillance. Law-enforcement agencies are increasingly using analytical software on video-surveillance footage.146 As data from data brokers may be used by analytical software to analyze footage, the passage of the Fourth Amendment Is Not for Sale Act might disincentivize some of the technological advancements that could make pole-camera surveillance more intrusive in the future.

Other nonlegislative congressional actions have demonstrated some willingness on the part of Congress to address privacy concerns at the federal level. In February 2022, numerous bipartisan members of Congress opposed the Internal Revenue Service’s adoption of ID.me, an identify-verification software that relied on facial-recognition technology.147 In April 2022, the House Oversight Committee and Coronavirus Subcommittee issued a letter to ID.me’s CEO, highlighting privacy concerns raised by privacy-rights advocacy groups.148 And in September 2022, members of Congress wrote to ICE urging the agency to end its surveillance practices.149 Several members of Congress also recently wrote to the DHS Secretary, calling on the agency to cease its use of facial-recognition technology.150 These examples may indicate an increased congressional interest in restricting government visual surveillance in other areas.

While the appetite for privacy-rights legislation at the federal level seems promising, there is little evidence to indicate that any legislation, if enacted, would successfully address the type of surveillance Tuggle faced. Tuggle was the target of extensive, long-term surveillance that included the collection of eighteen months of historical footage. The political appeal of curtailing this type of targeted surveillance of an individual person likely differs from the appeal of limiting mass surveillance. Mass surveillance, as I use the term, affects Americans regardless of criminal liability, race, or social class. Restrictions on mass surveillance are therefore more likely to be a priority for large numbers of constituents. As a result, most of the recent legislative proposals, when they address government surveillance at all, address mass government surveillance—consisting of massive amounts of data collected on large groups of people.151

For all the above reasons, it is highly unlikely that Congress will enact federal legislation that directly addresses long-term, warrantless pole-camera surveillance. But while federal legislation cannot wholly compensate for the Supreme Court’s inaction on privacy rights, it can address some of the technological features that may make pole-camera surveillance more harmful. For example, numerous members of Congress have expressed concerns about the misuse of facial-recognition technology.152 Federal legislative proposals, such as the Fourth Amendment Is Not for Sale Act, also address data privacy.153 As discussed above, pole-camera technology can be combined with facial-recognition technology, and video analytical software can efficiently analyze footage and cross-reference that footage to databases.154 Legislation restricting law enforcement’s use of either of these two technologies might therefore indirectly protect the privacy rights of some future targets of pole-camera surveillance.

3. Federal Legislative Advocacy: Strategies to Consider

While the federal legislative landscape provides few avenues for optimism, several of its lessons may prove useful for those seeking to safeguard the privacy rights of targets of government pole-camera surveillance.

First, to the extent possible, policy advocates should characterize pole-camera surveillance as a mass-surveillance problem. For example, certain technologies that may be integrated with pole-camera surveillance, such as facial recognition and data aggregation and analytics, can more easily be characterized as mass surveillance problems as compared to traditional pole camera technology. And, indeed, these and other technological advancements that make extensive and long-form surveillance easy, cheap, and efficient mean that pole-camera surveillance is, or at the very least will soon become, a mass-surveillance problem.

Second, policy advocates should tackle aspects of pole-camera surveillance that intersect with consumer-privacy issues—as opposed to exclusively issues concerning government surveillance. Legislation currently proposed in Congress may prove fruitful, and other measures can also be advanced to safeguard public privacy from private companies. In the area of video surveillance, for example, the advancement and proliferation of private video-surveillance cameras is a growing concern for antisurveillance advocates. One study in New York City revealed that police can access footage from scores of private surveillance cameras, effectively mapping out large portions of the city.155 Additionally, the data-broker industry that is behind some of the technologies that can be tacked onto pole-camera surveillance, such as facial recognition technology and data aggregation and analytics, is ripe for regulation. Given apparent congressional amenability to protecting consumer privacy from private actors, advocacy that focuses on private contributors to government surveillance may be likelier to succeed.

C. State and Local Progress

Because of the bleak federal landscape, legislative action at the state and local levels is likely the most favorable avenue for policy change. Several progressive localities across the country have proposed or imposed notable restrictions on police surveillance in recent years.

1. New York

In New York, these privacy-protective measures have included New York City’s passage of the Public Oversight of Surveillance Technology (POST) Act in 2020.156 The POST Act heightens transparency requirements for the use of surveillance technologies by the New York Police Department (NYPD).157 The law also requires the NYPD to implement impact and use policies for any new surveillance technologies it adopts, and to allow for public comment when proposing the adoption of these technologies.158 In a national landscape where many government agencies stealthily adopt increasingly advanced surveillance technologies, the POST Act stands as a model for increasing constituents’ power to oversee and review government use of surveillance.

New York state is also currently debating a bill to ban geofence warrants.159 When a law-enforcement agency obtains a geofence warrant, it can instruct private companies to search their location databases, other records for phones that were in a particular location at a particular time, and even records from users who searched specific keywords within a certain time frame.160 Through geofence warrants, law enforcement can obtain massive amounts of data on countless people, including people who are not subject to criminal liability. The bill to ban these warrants has widespread public support, including from several major tech companies, making its enactment more likely.161 The New York state legislature is also considering a bill prohibiting warrantless drone surveillance and banning the use of facial-recognition technology with footage obtained through drone surveillance.162 The introduction of these bills in New York shows not only an interest in advancing privacy protections generally but also a willingness to address new and emerging privacy-rights issues.

2. California

California provides another model for state legislation enhancing transparency and restricting police surveillance. California currently has a three-year moratorium in place on use of facial-recognition technology in police body-worn cameras.163 In 2018, California enacted legislation for transparency of body-worn-camera footage, requiring state law enforcement to release body-worn-camera videos to the public within forty-five days of their recording.164 California’s Electronic Communications Privacy Act also prohibits warrantless searches of electronic communication information and location data for law-enforcement purposes and prohibits warrantless physical searches of digital devices.165 In 2019, San Francisco and Oakland also banned local-government use of facial-recognition technology.166 These legislative achievements address police surveillance—a context where marginalized people are perhaps most disproportionately impacted by surveillance. California’s success in enacting surveillance restrictions in the policing context provides hope that the state could enact legislation protecting against prolonged pole-camera surveillance.

Privacy laws and proposed legislation in California and New York demonstrate a willingness on the part of both states and major cities to enact laws protecting constituents from police surveillance. Moreover, unlike most of the laws discussed at the federal level, these laws and legislative proposals do not only protect against mass surveillance. Many actively aim to protect constituents from targeted and individualized forms of police surveillance.

3. Pros and Cons of a Focus on State and Local Policy

There are disadvantages and advantages to prioritizing policy protections for people like Tuggle at the state and local level. The most obvious drawback of prioritizing localized protections is that localized protections could mean the absence of universal privacy protections. Without action at the federal level, those in jurisdictions less likely to enact privacy protections will remain susceptible to surveillance. Policy advocates with limited resources may thus face a difficult choice for where to direct their energy: toward federal policy advocacy that benefits all constituents but is less likely to be successful, or toward state and local advocacy that may deliver results but leave many unprotected.

On the other hand, local privacy protections in more progressive jurisdictions may protect those who are most vulnerable to pole surveillance. People in urban environments, people with fewer expendable funds, and people who rent and do not own their homes cannot easily erect fences and implement other measures to safeguard their homes from pole-camera surveillance.167 Furthermore, historically, people of color and other minorities are subject to higher rates of government surveillance.168 Together, these factors indicate that those most likely to be surveilled and least likely to be able to protect themselves from pole-camera surveillance are lower income people of color, living in urban environments, and renting their homes. Thus, because metropolitan areas have enacted some of the most progressive surveillance legislation in recent years,169 prioritizing privacy protections in these progressive jurisdictions may serve to protect those communities most likely to be the targets of pole-camera surveillance.

Another advantage to prioritizing local legislation in progressive jurisdictions is that achievements in those jurisdictions create precedent for legislation in other jurisdictions. In other privacy contexts, novel and successful privacy legislation in certain local jurisdictions has served as a model for other jurisdictions.170

conclusion

In declining to review Tuggle, the Supreme Court missed an opportunity to clarify and strengthen its confusing and increasingly outdated Fourth Amendment jurisprudence. As lower-court divisions deepen, Moore-Bush may offer the Court a second chance to protect privacy rights against pole-camera surveillance and to clarify enduring questions about privacy and Fourth Amendment searches.

Still, policy advocates should not wait on the Supreme Court to squash the privacy threat posed by rapidly evolving surveillance technologies. State courts provide a ripe avenue for strategic litigation to create precedent establishing a mosaic theory of surveillance in search cases. In addition, strategic policy advocacy may include pursuing regulations for companies that produce or sell capabilities or data that make government surveillance more advanced and dangerous. It may also include focusing advocacy efforts on progressive jurisdictions where privacy protections are most likely to pass and using those jurisdictions as models for future piecemeal advocacy.

The fight for privacy from government surveillance has never been easy—particularly as privacy violations disproportionately impact the most marginalized and most stigmatized members of society. The result is that achieving widespread societal support for increased protections has been an uphill climb—one that grows steeper as law-enforcement surveillance budgets seem to increase.171 Staunch advocates and impacted communities will continue, as they long have, to adapt their efforts to protect privacy rights in the face of these obstacles. Nevertheless, the Court would do well not to continue its pattern of inaction and instead to act firmly to protect fundamental rights.

Judicial Law Clerk, United States District Court for the District of Connecticut. 2021-2022 Yale Law Journal Justine Wise Polier Public-Interest Fellow at the Electronic Privacy Information Center (EPIC). Yale Law School, J.D. 2021. I am grateful to Jeramie Scott, Megan Iorio, and Alan Butler for their generous guidance, mentorship, and feedback. I am also indebted to my former colleagues at EPIC, along with the advocates at the Electronic Frontier Foundation and other privacy-rights organizations; their prior and ongoing advocacy work is foundational to the ideas I present here. Thank you also to Josh Lefkow and the Yale Law Journal editors for the consistently thoughtful and incisive edits. Finally, I thank my family and friends for their endless support. This Essay reflects only my personal views.