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* Professor of Law, Alumni Research Scholar and Associate Dean, University of

Florida College of Law; Reporter, American Bar Association Task Force on

Technology and Law Enforcement. More than is typically the case with a law

review article, I owe a debt of gratitude to many others, most particularly the

members of the Task Force, see infra note 6, who are largely responsible for the

ideas described in this Article (although any errors in describing the

deliberations of the Task Force are mine). For their special contributions to

this effort, I thank Sheldon Krantz, Chair of the Task Force on Technology and

Law Enforcement; Judy McBride, Director of the ABA's Criminal Justice Standards

Committee during the Task Force's deliberations; Wayne LaFave, whose comments

contributed significantly to the ideas expressed in this Article; and

Christopher C. Look, my research assistant.

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SUMMARY:

... Wary of electronic surveillance, the group never uses phones or pagers but

instead conducts all of its transactions face-to-face. ... Finally, when a

detection device search does require probable cause, the standard eliminates the

warrant requirement not only in exigent circumstances, but also when the place

searched is associated with a "lesser expectation of privacy" (e.g., a car). ...

As with the rules governing long-term public video surveillance, a fixed

checkpoint established to detect contraband or weapons must be approved by "an

appropriate politically accountable law enforcement official or governmental

authority"; further, the public affected by such a checkpoint must be notified

of the location and be given periodic opportunities to express its views. ...

The recording ability of physical surveillance technology, particularly in

connection with video surveillance and Intelligent Transportation Systems,

raises the potentially difficult issues of disclosure and retention. ... At the

same time, if it has done nothing else, the work of the Task Force on Technology

and Law Enforcement has persuasively demonstrated that some regulatory structure

governing the use of physical surveillance technology is necessary. ... Law

enforcement use of technologically-assisted physical surveillance can also

diminish privacy, freedom of speech, association and travel, and the openness of

society. ...

TEXT:

I. INTRODUCTION

It is the year 2001. The Chicago police know that a large and violent drug ring

is operating out of Slumville, a downtown section of the city. The gang

manufactures drugs, sells them on the streets, and distributes them to other

locations in Chicago and outlying areas. Wary of electronic surveillance, the

group never uses phones or pagers but instead conducts all of its transactions

face-to-face. The city is fed up with having an illegal drug factory in its

midst.

The new chief of police decides to mount an aggressive effort to close down the

gang's operation, but does not have the manpower she needs to carry out an

extensive campaign. Even if she did, she doubts whether traditional foot and car

patrols could safely put a stop to the gang's activities. The department has

recently spent a considerable sum of money on investigative technology. The

chief decides that using the new gadgets to identify and assemble evidence

against the kingpins and soldiers of the operation would be the perfect way to

prove the worth of the investment.

The attack against the gang proceeds on several fronts. Telephone poles at every

intersection of Slumville are conspicuously outfitted with bullet-resistant

video cameras, equipped with wide-angle lenses and 24-hour recording capacity.

Miniature video cameras with pinhole apertures are covertly installed in a

number of Slumville buildings thought to house gang members. At night, police

periodically fly over the area in helicopters, armed with nightscopes that have

a magnification capability of 500x and devices that detect heat waves emanating

from buildings, a telltale sign of a drug processing laboratory.

Any car that leaves or enters the area is tracked electronically, following

signals from transponders installed as part of Chicago's Intelligent

Transportation System or, if the transponder has been removed, using signals

from a beeper attached to the car by projectile launcher. At various streets

leading into Slumville, checkpoints are established. At each one, the department

installs devices that produce detailed pictures of objects concealed by clothing

or car exteriors. Similar hand-held devices are used by foot and car patrols to

scan passersby. As a final measure, the city contracts with the federal

government to have photographs of Slumville taken whenever a satellite is within

range; these pictures can be enhanced to highlight suspicious activity.

* * *

All of this technology exists today, albeit in differing stages of development.

Some of it (e.g., beepers and video cameras) has been available to the police in

some form for decades. n1 Other technologies (e.g., sensitive "see-through"

technology and satellite photography) have only recently begun to find their way

into the law enforcement arsenal, n2 partly as the result of the "peace

dividend" associated with the end of the Cold War. n3 Although none of this

technology is routinely used by the average police department at present, it is

likely to become more prevalent as it becomes less expensive and better known.

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n1 See, e.g., ALAN F. WESTIN, PRIVACY AND FREEDOM 173 (1967) (noting that

according to a "thorough" 1957 study of local and state governmental

surveillance, "tracking devices . . . and hidden cameras were widely used not

only by urban police and prosecutors' offices but also by suburban departments,

sheriffs' offices, state troopers, highway patrols, and state attorney-generals'

[sic] offices, as well as some state regulatory agencies and legislative

committees.").

n2 See, e.g., Fox Butterfield, New Devices May Let Police Spot People on the

Street Hiding Guns, N.Y. TIMES, Apr. 7, 1997, at A1, A10 (noting law enforcement

plans to install sensitive weapon-detection systems in prisons and courthouses,

and describing research into devices that could detect weapons under clothing

from up to 60 feet away); Krysten C. Kelly, Note, Warrantless Satellite

Surveillance: Will Our Fourth Amendment Privacy Rights Be Lost in Space?, 13 J.

MARSHALL J. COMPUTER & INFO. L. 729, 761 (1995) ("Law enforcement agencies will

eventually use the satellite in surveillance. . . .").

n3 For instance, the fastest, longest-range detection device was developed by

the U.S. Army. See Butterfield, supra note 2, at A10. Satellite photography was

also developed for military purposes. See Kelly, supra note 2, at 730 nn.10-12.

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Unfortunately, current law is ill-equipped to handle the issues raised by this

merger of space-age science and modern-day law enforcement. Indeed, police use

of this surveillance technology is virtually unregulated by either legislation

or administrative rules. While judicial decisions have produced some useful

criteria for deciding when and how to regulate technological investigation,

courts have failed to produce a consistent or comprehensive approach to such

regulation. n4

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n4 See infra Part II.A.

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In 1995, the American Bar Association began an effort to fill this void. In May

of that year, the ABA's Criminal Justice Section established a Task Force on

Technology and Law Enforcement. n5 Composed of judges, prosecutors, defense

attorneys, privacy experts, national security experts, law professors, and

representatives of federal and state law enforcement agencies, n6 the Task Force

was initially directed to review the ABA's Electronic Surveillance Standards. n7

These standards, which cover wiretapping and bugging, have not been

substantially revised since 1978. n8 However, the ABA also recognized the need

to expand the scope of these standards to reflect the development of other

"advanced investigative tools" -- tools that might require a rebalancing of "the

need for aggressive law enforcement with privacy and freedom . . .

considerations." n9

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n5 Letter from William H. Jeffress, Jr., Chair of the ABA's Criminal Justice

Standards Committee, to Sheldon Krantz, Chair of the Task Force (May 3, 1995)

(on file with the Harvard Journal of Law and Technology) [hereinafter Jeffress

Letter].

n6 The Task Force originally consisted of nine members and eleven liaisons from

various interested organizations. Membership changed over the two-year period of

the Task Force.

Task Force Members: Sheldon Krantz, Chair, Piper & Marbury, Washington, DC;

Walter Bruce Brownridge, General Counsel to the Cleveland Police Department,

Cleveland, OH; the Honorable James G. Carr, Judge, U.S. District Court, Toledo,

OH; Scott Charney, Chief, Computer Crime Unit, U.S. Department of Justice;

Andrew Good, defense attorney, Silverglate & Good, Boston, MA; the Honorable

Richard Huffman, Associate Justice, Fourth District Court of Appeal, San Diego,

CA; Professor Wayne R. LaFave, University of Illinois College of Law, Champaign,

IL; Marc Rotenberg, Director, Electronic Privacy Information Center, Washington,

DC; Gail Thackeray, Deputy County Attorney, Phoenix, AZ.

Reporters: Professor Christopher Slobogin, University of Florida College of Law,

Gainesville, FL; the Honorable Martin Marcus, Judge, Bronx County Supreme Court,

Bronx, NY.

Liaisons: James M. Caterson, National District Attorneys Association; Ronald

Goldstock, ABA Criminal Justice Section Council; Samuel A. Guiberson, ABA

Criminal Justice Section Science and Technology Committee; Mary F. Harkenrider,

U.S. Department of Justice; William J. Johnson, National Association of Police

Organizations; Lionel Kennedy, National Security Agency; Albert J. Krieger,

National Association for Criminal Defense Lawyers; Emil P. Moschella, Federal

Bureau of Investigation; Eric M. Noonan, National Association of Attorneys

General; Ronald L. Plesser, ABA Individual Rights and Responsibilities Section;

Terrence Sheridan, Major Cities Chiefs Association; Jo-Ann Wallace, National

Legal Aid and Defender Association; Daniel Weitzner, Center for Democracy and

Technology (ad hoc liaison); R. Hackney Wiegmann, U.S. Department of Defense;

Brad Wiegmann, U.S. Department of Defense; Brad Wiegmann, U.S. Department of

Defense (replacing R. Hackney Wiegmann); Stuart Wirtz, Federal Bureau of

Investigation (replacing Emil P. Moschella).

n7 STANDARDS FOR CRIMINAL JUSTICE § 2 (2d ed. 1980 & Supp. 1986) [hereinafter

Electronic Surveillance Standards]. These standards originated in the AMERICAN

BAR ASSOCIATION PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, STANDARDS

RELATING TO ELECTRONIC SURVEILLANCE (Tentative Draft 1968) [hereinafter

PROJECT].

n8 The Electronic Surveillance Standards were modified in 1978 (Kenneth J.

Hodson, Chair, Standing Committee on Association Standards for Criminal Justice;

Frank J. Remington, Chair, Task Force on Electronic Surveillance; James G. Carr,

Reporter) and in 1986 (William H. Erickson, Chair, Standing Committee on

Association Standards for Criminal Justice; Eugene Cerruti, Reporter). Both

revisions consisted primarily of updating commentary, although the 1978 revision

did result in some changes to black-letter standards as well.

n9 Jeffress Letter, supra note 5, at 1.

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To carry out this objective, the Task Force divided law enforcement surveillance

practices into three conceptual categories: communications surveillance,

physical surveillance, and transactional surveillance. n10 The term

communications surveillance encompasses the real-time n11 interception of oral,

written, and electronic communications using electronic or other means. n12

Physical surveillance involves the real-time observation or detection of

movements, activities, and conditions. Finally, transactional surveillance

refers to efforts to access pre-existing records such as phone logs, electronic

mail logs, credit card histories, other financial transaction data, and air,

train, and bus travel bookings. n13

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n10 The Task Force identified two other areas of concern: searches and seizures

of computers, and encryption. The former focuses primarily on searches and

seizures of technology, as opposed to searches and seizures using technology.

Encryption involves the use of technology to prevent searches and seizures.

Accordingly, these areas are not closely related to the three categories

identified in the text.

n11 The term "real-time" describes activities that occur in the present

according to a conventional human time frame. With regard to communication,

"real-time" surveillance occurs contemporaneously; it does not include searches

of records of past transactions.

n12 Standards on this topic are currently being revised by the Task Force, with

the Honorable Martin Marcus as Reporter.

n13 See generally Jonathan P. Graham, Note, Privacy, Computers, and the

Commercial Dissemination of Personal Information, 65 TEX. L. REV. 1395,

1397-1402 (1987). Although this information can be accessed through traditional

means, computers greatly facilitate "collecting, storing, processing and

disseminating personal data." Id. at 1397. Given resource and time constraints,

the Task Force is not likely to develop standards in this area.

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This Article describes the ABA's current efforts to establish guidelines for

technologically-assisted physical surveillance (i.e., physical surveillance that

uses the types of technology described earlier). The Appendix sets out the

Tentative Draft Standards Concerning Technologically-Assisted Physical

Surveillance that were approved by the Task Force in February, 1997. n14 The

body of the Article explains the process by which these standards were created.

Part II describes and analyzes current law on the subject. Part III outlines the

Task Force's current approach to technologically-assisted physical surveillance.

Part IV identifies the issues that generated the most debate within the Task

Force and explains how they were resolved. n15 The primary purposes of this

Article are to alert interested parties (including law enforcement officials,

lawyers, and the public) to the ABA's efforts and to encourage feedback.

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n14 As the title indicates, these standards are only preliminary. Although the

Task Force has approved them, to become official ABA policy they must be

endorsed by a majority of the ABA House of Delegates. Before that can occur, the

standards and accompanying commentary must be reviewed by the Criminal Justice

Standards Committee (a group of judges, defense attorneys, and prosecutors) and

the standards (sans commentary) must be reviewed and approved by the Criminal

Justice Section Council (a similarly-constituted group), with the latter

subjecting the standard to two formal readings.

n15 Although a commentary to the Tentative Draft Standards exists, it is not

reproduced here for several reasons. First, it is still in draft form, as it

must be because significant changes to the standards could occur. See supra note

14. Second, even the draft version is extremely long. Third, the ABA retains

copyright over the commentary. Nonetheless, the overlap between the draft

commentary and this Article is significant, if only because the two documents

have the same author.

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II. THE LEGAL RESPONSE TO PHYSICAL SURVEILLANCE

To the extent any regulation of law enforcement use of technologically-assisted

physical surveillance has occurred, it has come primarily from courts. In

contrast to electronic surveillance of communications n16 and some types of

transactional surveillance, n17 physical surveillance has never been the subject

of concerted legislative oversight. Neither the ABA's Electronic Surveillance

Standards n18 nor the analogous federal provisions dealing with electronic

surveillance (Title III) regulate technological enhancement of physical

surveillance. n19 State and local lawmaking bodies have also largely avoided the

issue. n20

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n16 $=See Title III of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §§ 2510-2520 (1994) [hereinafter Title III]. Since the enactment of

the 1968 Act, there have been two significant amendments to Title III: the

Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.

1848 (codified in scattered sections of 18 U.S.C.) (regulating, inter alia, the

interception of cellular phone calls and electronic mail) and the Digital

Telephony Act of 1994, Pub. L. No. 103-414, 108 Stat. 4279 (codified at 47

U.S.C. §§ 1001-1010 (1994 & Supp. 1997) and in scattered sections of 18 U.S.C.)

(dealing primarily with the configuration of communications systems to

facilitate access by law enforcement).

n17 For example, the Electronic Communications Privacy Act regulates access to

stored electronic communications and electronic bulletin board member lists. See

18 U.S.C. § 2703(c)(1)(A) (1994). The Right to Financial Privacy Act regulates

access to financial information. See 12 U.S.C. § 3402 (1994). The Cable

Television Privacy Act regulates disclosure of identifying information about

cable subscribers. See 47 U.S.C. § 551 (1994).

n18 As the commentary to the Project stated, "It was felt that the standards

should be limited to aural surveillance, since it was in this field that we had

the greatest experience and that to attempt to go beyond that experience now

would be premature." PROJECT, supra note 7, at 104.

n19 But see infra text accompanying note 94.

n20 See, e.g., Richard Cole, Man with Hidden Camcorder May Be Guilty, But of

What?, SAN DIEGO UNION-TRIB., Mar. 26, 1996, at A3 (reporting that surreptitious

filming of private club members is not a crime unless simultaneous audio

recording occurs). But cf. SEMINOLE COUNTY FLORIDA, SEMINOLE COUNTY FLORIDA

TRAFFIC MANAGEMENT SYSTEM POLICY FOR USE OF TRAFFIC MONITORING DEVICES (1996)

(on file with the Harvard Journal of Law and Technology) (detailing regulations

that govern public use of video cameras by law enforcement agencies).

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Courts, on the other hand, have been increasingly active in setting legal

parameters for the use of these surveillance devices. Judicial analysis has

focused on whether, and to what extent, the Fourth Amendment is implicated by

physical surveillance. The initial question under that Amendment has been

whether the surveillance is a "search." Since Katz v. United States, n21 in

which the Supreme Court held that police use of a bugging device to eavesdrop on

a phone booth conversation is a Fourth Amendment search, this threshold has been

defined as police action that infringes on "expectation[s] of privacy . . . that

society is prepared to recognize as 'reasonable.'" n22 Assuming surveillance

does implicate the Fourth Amendment, the second question concerns the criteria

necessary to authorize surveillance -- a warrant based on probable cause,

something more, or something less. One of the Task Force's first tasks was to

analyze judicial treatment of these issues with respect to physical

surveillance.

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n21 389 U.S. 347 (1967).

n22 Id. at 361.

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A. Factors from the Case Law

In deciding whether a particular type of physical surveillance is a search and,

if so, how to regulate it, the courts have adopted a multi-factor approach. The

seven factors discussed below overlap to some extent; further, in any given case

only a few may be explicitly mentioned. Considered together, however, they span

the universe of considerations that courts have applied to physical

surveillance, whether or not it is technologically-aided.

1. The Nature of the Place To Be Observed

The most important factor has been the nature of the place subjected to physical

surveillance. Not surprisingly, given Katz's emphasis on expectations of

privacy, enhanced surveillance is least likely to be left unregulated when it

focuses on the home, normally the site of one's most intimate activities. Thus,

courts often hold that observing the interior of a home or similar area n23 is a

search, at least when conducted with enhancement devices. n24 In such instances,

courts usually require a warrant based on probable cause, although in some

situations more might be required and in others less might be sufficient. For

example, many lower courts have held that video surveillance of the interior of

a home must meet the more stringent federal statutory requirements applied in

the wiretapping context. n25 Toward the other end of the spectrum, in United

States v. Karo, n26 the Supreme Court held that the use of an electronic beeper

to detect movement within a house is a search that requires some type of

judicial authorization, but left open the question of whether probable cause or

merely reasonable suspicion is required. n27 As developed below, n28 many lower

courts have held that even suspicionless surveillance of homes is permitted

under certain circumstances. Nonetheless, as a general rule courts accord homes

and like areas the most significant protection.

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n23 Katz's holding that bugging a phone booth is a search established that while

homes may be the paradigmatic protected area, certain other areas are entitled

to substantial protection. See, e.g., O'Connor v. Ortega, 480 U.S. 709 (1987)

(holding that desk drawers in an office are entitled to a reasonable expectation

of privacy); State v. Bryant, 177 N.W.2d 800 (Minn. 1970) (holding that

restrooms in a store are protected by the Fourth Amendment); Alward v. State,

912 P.2d 243 (Nev. 1996) (finding a reasonable expectation of privacy in a tent,

even though positioned on public land); State v. Baker, 271 A.2d 435 (N.J. 1970)

(finding that a private room in a store is protected by the Fourth Amendment).

n24 See, e.g., United States v. Taborda, 635 F.2d 131 (2d Cir. 1980)

(observation of a residence using a telescope); United States v. Kim, 415 F.

Supp. 1252 (D. Haw. 1976) (same); State v. Ward, 617 P.2d 568 (Haw. 1980)

(same); State v. Blacker, 630 P.2d 413 (Or. Ct. App. 1981) (same); State v.

Crea, 233 N.W.2d 736 (Minn. 1975) (shining a flashlight into a basement);

Commonwealth v. Williams, 431 A.2d 964 (Pa. 1981) (observation of an apartment

using binoculars and a Startron nightscope); see also WAYNE LAFAVE, SEARCH AND

SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.2 (3d ed. 1996). As Professor

LaFave notes, when the surveillance is with the naked eye, a different view

prevails: "At least when the officer only employs his natural senses, the

prevailing rule is that such uses of the senses 'made from a place where a

police officer has a right to be do not amount to a search in the constitutional

sense.'" Id. at § 2.3(c) (citations omitted).

n25 See, e.g., United States v. Torres, 751 F.2d 875 (7th Cir. 1984) (holding

that a Title III warrant describing with particularity the place to be viewed is

necessary to authorize video surveillance, and may be issued only if other means

of investigation have failed and steps are taken to minimize unnecessary privacy

intrusions); United States v. Falls, 34 F.3d 674 (8th Cir. 1994); United States

v. Koyomejian, 970 F.2d 536 (9th Cir. 1992).

n26 468 U.S. 705 (1984).

n27 See id. at 718.

n28 See infra notes 39, 56-57 & 62 and accompanying text (discussing cases that

involve a failure to take precautions, the use of "common" technology, and

confirmation of naked-eye viewing).

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In contrast, when the surveillance is of an area outside a residence or

similarly private area, courts have often found the Fourth Amendment irrelevant.

For instance, the Supreme Court held in United States v. Knotts n29 that use of

a beeper to detect movement on the public roads is not a search. Also not a

search, according to the Court, is the use of an illumination device to inspect

the interior of a car through a window, n30 the interior of a barn located in an

open field, n31 or the exterior of a boat. n32 Nor is aerial surveillance of

industrial n33 or residential n34 curtilage normally a search, even if it takes

place only 400 yards above the ground. n35 Consonant with these Supreme Court

opinions, lower courts have typically held that the use of enhancement devices

to view cars, curtilage, open fields, or public areas is not a search. n36

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n29 460 U.S. 276 (1983).

n30 See Texas v. Brown, 460 U.S. 730 (1983).

n31 See United States v. Dunn, 480 U.S. 294 (1987).

n32 See Lee v. United States, 274 U.S. 559 (1927).

n33 See Dow Chem. Co. v. United States, 476 U.S. 227 (1986) (a telescopic

map-making camera in aerial surveillance).

n34 See California v. Ciraolo, 476 U.S. 207 (1986).

n35 See Florida v. Riley, 488 U.S. 445 (1989) (low-altitude helicopter

surveillance).

n36 See LAFAVE, supra note 24, § 2.2(b)-(c).

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2. The Steps Taken to Enhance Privacy

Even an area normally associated with an expectation of privacy may not be

entitled to Fourth Amendment protection if no efforts are made to keep it

private. Thus, in holding a flashlight inspection of a barn to be outside the

Fourth Amendment's purview, the Supreme Court's decision in United States v.

Dunn n37 noted that the upper portion of a "wall" through which police observed

the interior consisted only of netting material. n38 Similarly, in California v.

Ciraolo, n39 the fact that the defendant's fence was only ten feet high, and

thus would not have kept observers on a truck or a double-decker bus from seeing

his backyard helped justify aerial surveillance of residential curtilage. In a

like vein, lower courts have often considered the presence of fences and

curtains, the height of windows, and whether objects were out of the line of

normal sight. n40 In short, a lack of effort to protect privacy may mean that

one does not have any for Fourth Amendment purposes.

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n37 480 U.S. 294 (1987).

n38 See id. at 298.

n39 476 U.S. 207 (1986).

n40 See, e.g., People v. Ferguson, 365 N.E.2d 77 (Ill. App. Ct. 1977) (holding

that the use of binoculars to look through the windows of a second floor

apartment from 60 feet away is not a search); People v. Hicks, 364 N.E.2d 440

(Ill. App. Ct. 1977) (holding that the use of night binoculars to look into a

first-floor hotel room when curtains could have been pulled is not a search);

State v. Littleton, 407 So.2d 1208 (La. 1981) (holding that the use of

binoculars to look into a hangar with a thirty- to forty-foot-wide opening is

not a search); State v. Louis, 672 P.2d 708 (Or. 1983) (holding that the use of

a telephoto lens to observe a person repeatedly positioning himself at a window

is not a search).

3. The Degree to Which the Surveillance Requires a Physical Intrusion onto

Private Property (i.e., the Location of the Observer)

In finding that no search had occurred in Ciraolo and its companion case, Dow

Chemical Company v. United States, n41 the Court emphasized the fact that the

government had flown over the land rather than physically intruded upon it. n42

Similarly, a dog sniff of luggage is not a search in part because the dog itself

does not intrude into the luggage. n43 Lower courts have echoed the view, which

harkens back to pre-Katz trespass analysis, n44 that the absence of an intrusion

diminishes Fourth Amendment concerns. For instance, courts have sanctioned the

use of thermal-imaging devices to detect heat waves emanating from houses in

part because the surveillance does not require an entry. n45

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n41 476 U.S. 227 (1986).

n42 See Ciraolo, 476 U.S. at 207 ("The observations . . . took place within

public navigable airspace . . . in a physically nonintrusive manner . . . .");

Dow Chem., 476 U.S. at 237 ("The narrow issue . . . concerns aerial observation

of a 2,000-acre outdoor manufacturing facility without physical entry.").

n43 See United States v. Place, 462 U.S. 696, 707 (1983) (holding that because a

dog sniff "does not require opening the luggage [and] does not expose

noncontraband items that otherwise would remain hidden from public view . . .

this investigative technique is much less intrusive than a typical search").

n44 Prior to Katz, Fourth Amendment protection depended upon whether police

actions constituted a trespass on the property of the suspect. See Olmstead v.

United States, 277 U.S. 438 (1928) (holding that tapping telephone wires outside

suspects' premises is not a search); Goldman v. United States, 316 U.S. 129

(1942) (holding that listening to a conversation in an adjoining room by means

of a "detectaphone" placed against the wall is not a search).

n45 See, e.g., United States v. Pinson, 24 F.3d 1056, 1059 (8th Cir. 1994) ("The

detection of the heat waste was not an intrusion into the home; no intimate

details of the home were observed, and there was no intrusion upon the privacy

of the individuals within."); United States v. Ishmael, 48 F.3d 850, 856 (5th

Cir. 1995) (finding that thermal imaging devices do not in "any way penetrate

structures within [the] area").

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A closely related issue is whether the observer's vantage point is "lawful";

this question is usually simply another way of asking whether the surveillance

involves an intrusion into private space. Even private property can be a lawful

vantage point, as demonstrated by the holding in Dunn that viewing the interior

of a structure from a privately-owned open field is not a search n46 and by

lower court rulings that viewing the interior of a home from that part of the

curtilage that invites the public (e.g., a sidewalk) is not a search. n47 On the

other hand, sufficiently unusual vantage points, including those located in

public space, may not be "lawful" for Fourth Amendment purposes. n48 When a

vantage point is lawful, however, even surveillance using enhancement devices is

often found to be acceptable -- several courts have held, for instance, that so

long as the vantage point is lawful, using binoculars to look into a private

residence is not a search. n49

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n46 See United States v. Dunn, 480 U.S. 294, 304-05 (1987).

n47 See LAFAVE, supra note 24, § 2.3(c).

n48 See State v. Kender, 588 P.2d 447 (Haw. 1978) (holding that a search occurs

where an officer climbs three-quarters of the way up a fence and braces himself

on a fellow officer's shoulder to use a telescope to see into a backyard).

n49 See, e.g., United States v. Whaley, 779 F.2d 585 (11th Cir. 1986) (holding

that the use of binoculars to observe a basement through a window from

neighboring property is not a search); People v. Ferguson, 365 N.E.2d 77 (Ill.

App. Ct. 1977); People v. Hicks, 364 N.E.2d 440 (Ill. App. Ct. 1977); State v.

Littleton, 407 So.2d 1208 (La. 1981); State v. Thompson, 241 N.W.2d 511 (Neb.

1976) (holding that the use of binoculars to observe a living room from an alley

where "officers had a right to be" is not a search); State v. Louis, 672 P.2d

708 (Or. 1983).

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4. The Nature of the Object or Activity Observed

In Ciraolo, the Court stated that Katz's rule protecting the privacy of

conversations "does not translate readily into a rule of constitutional

dimensions that one who grows illicit drugs in his backyard" is entitled to an

expectation of privacy. n50 Along the same lines, the Court has held that

testing a substance strongly believed to be cocaine is not a search, n51 nor is

a dog sniff of luggage that which alerts the police only to the presence of

contraband. n52 Observation of impersonal objects other than illicit substances

may also be less subject to regulation. In Dow Chemical, the Court noted that

the aerial photographs in dispute revealed physical details of Dow's plant, but

not "identifiable human faces or secret documents," or other "intimate details."

n53 Similarly, several cases holding that the use of thermal imaging devices is

not a search characterize heat waves as "waste." n54

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n50 California v. Ciraolo, 476 U.S. 207, 214 (1986). Presumably for the same

reason a burglar has no expectation of privacy. Cf. Rakas v. Illinois, 439 U.S.

128, 143 n.12 (1978) ("A burglar plying his trade in a summer cabin during the

off season may have a thoroughly justified expectation of privacy, but it is not

one which the law recognizes as 'legitimate.'").

n51 See United States v. Jacobsen, 466 U.S. 109, 123 (1984) ("Congress has

decided . . . to treat the interest in 'privately' possessing cocaine as

illegitimate; thus, governmental conduct that can reveal whether a substance is

cocaine, and no other arguably 'private' fact, compromises no legitimate privacy

interest.").

n52 See United States v. Place, 462 U.S. 696, 707 (1983) ("The sniff discloses

only the presence or absence of narcotics, a contraband item. Thus, despite the

fact that the sniff tells the authorities something about the contents of the

luggage, the information obtained is limited.").

n53 Dow Chem. Co. v. United States, 476 U.S. 227, 239 n.5 (1986).

n54 See United States v. Pinson, 24 F.3d 1056, 1059 (8th Cir. 1994); United

States v. Penny-Feeney, 773 F. Supp. 220, 225 (D. Haw. 1991).

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5. The Availability of the Technology to the General Public

The camera used in Dow Chemical had a magnification capability of 240x n55 and

cost $ 22,000. These facts did not give the Court pause, because the camera

could be purchased on the commercial market. n56 The Court, however, added that

the same observation "using highly sophisticated surveillance equipment not

generally available to the public, such as satellite technology, might be

constitutionally proscribed absent a warrant." n57 Further, the use of "an

electronic device to penetrate walls or windows so as to hear and record

confidential discussions of chemical formulae or other trade secrets would raise

very different and far more serious questions" than the camera surveillance in

Dow Chemical. n58 Lower courts have echoed these sentiments, quite often finding

the commonness of the surveillance technique to be dispositive. n59

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n55 See Dow Chem., 476 U.S. at 242-43 & n.4 (Powell, J., dissenting) (finding

that the camera allowed "enlargement to a scale of 1 inch equals 20 feet or

greater, without significant loss of detail or resolution") (emphasis added).

n56 See id. at 238 (describing the camera as "a conventional, albeit precise,

commercial camera commonly used in map-making").

n57 Id.

n58 Id. at 239.

n59 See, e.g., United States v. Allen, 675 F.2d 1373, 1380 (9th Cir. 1980)

(holding that the use of a special lens is not a search because "such equipment

is widely available commercially"); State v. Vogel, 428 N.W.2d 272, 275 (S.D.

1988) (finding no search where a camera with a zoom lens is used to photograph

the interior of a residence and there is "no showing that the cameras and lenses

used . . . [are] 'sophisticated visual aids' or 'special equipment not generally

in use'"); State v. Rose, 909 P.2d 280, 286 (Wash. 1996) (holding that the use

of a flashlight to look into a house is not a search in part because a

flashlight is "an exceedingly common device"); State v. Lange, 463 N.W.2d 390

(Wis. Ct. App. 1990) (finding no search when standard binoculars and cameras

equipped with generally available standard and zoom lenses are used to view

homes).

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The reasoning in these cases takes on the flavor of the Supreme Court's

undercover investigation jurisprudence, n60 in which the targets of surveillance

are said to assume the risk that the people with whom they interact will be

government agents. In this context, however, the risk said to be assumed is

actually twofold. First, these courts are saying that we must assume the risk

that any device which is readily available on the market will be used to observe

our movements and activities. Second, they are saying that, just as we should

know that an acquaintance may be working for law enforcement, we assume the risk

that those using such enhancement devices are government agents.

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n60 See, e.g., Lewis v. United States, 385 U.S. 206, 211 (1966)(holding that

entry into a home by an undercover agent posing as a drug dealer is not a search

when defendant invites him); United States v. White, 401 U.S. 745, 752 (1971)

(holding that taping a conversation using a body bug on a government informant

is not a search because there is no significant difference between recording and

hearing statements); United States v. Miller, 425 U.S. 435, 443 (1976) (holding

that a government subpoena of bank records is not a search because a depositor

"takes the risk, in revealing his affairs to another, that the information will

be conveyed by that person to the government"); Smith v. Maryland, 442 U.S. 735,

743-44 (1979) (holding that obtaining a defendant's phone numbers from the phone

company is not a search because a person has no expectation of privacy "in

information he voluntarily turns over to third parties").

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6. The Extent to Which the Technology Enhances the Natural Senses

Some courts have distinguished between devices that "improve" human senses and

devices that "replace" them, with the latter being more likely to implicate the

Fourth Amendment. n61 Using the examples given in Dow Chemical, a satellite or

gadget that sees through walls could be said to replace one's senses rather than

enhance them because it sees things that the police might never be able to see

with the eye. Conversely, when enhancement devices simply "confirm" something

already seen by the naked eye, or see something that could be viewed with the

naked eye but for fear of discovery, the use is less likely to be seen as a

search, even if the surveillance is of the home. n62 This idea may help explain

the holding in Texas v. Brown, n63 where the Supreme Court upheld the

warrantless use of a flashlight to search the interior of a car, stating that

"the use of artificial means to illuminate a darkened area simply does not

constitute a search, and thus triggers no Fourth Amendment protection." n64

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n61 Compare People v. Arno, 153 Cal. Rptr. 624, 626 (Ct. App. 1979) (finding

that binoculars may be used "to permit clandestine police surveillance of that

which could be seen from a more obvious vantage point without the optical aid")

with United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985) (finding that

the use of a dog is "not a mere improvement of sense of smell, as ordinary

eyeglasses improve vision, but is a significant enhancement accomplished by a

different, and far superior, sensory instrument").

n62 See United States v. Bassford, 601 F. Supp. 1324, 1335 (D. Me. 1985), aff'd,

812 F.2d 16 (1st Cir. 1987) (holding that the use of binoculars is not a search

when they give a "view of a readily visible marijuana plot previously observed

with the naked eye"); State v. Holbron, 648 P.2d 194, 197 (Haw. 1982) (finding

no search where binoculars are used only to confirm unaided observations); State

v. Irwin, 718 P.2d 826, 829-30 (Wash. Ct. App. 1986) (holding that the use of an

enhancement device from nearby woods in order to avoid detection is not a

search).

n63 460 U.S. 730 (1983).

n64 Id. at 740.

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7. The Extent to Which the Surveillance Is Unnecessarily Pervasive, Invasive, or

Disruptive (i.e., Steps Taken to Minimize the Intrusion)

Finally, several courts addressing the propriety of physical surveillance have

considered a complex of factors analogous to those associated with minimization

in the electronic surveillance context. n65 Most significantly, they have looked

at the number of people or objects observed (the pervasiveness issue). For

instance, while lower courts accept the idea that a dog sniff of luggage is

generally not a search, several have expressed concern over the routine use of

dogs to sniff all packages in a particular area. n66 Similarly, while aerial

surveillance is generally not considered a search, courts have condemned random

aerial patrols over wide-ranging areas. n67 Along the same lines, in his dissent

in Jacobsen, Justice Brennan cautioned against reading the Court's contraband

search cases to permit police dogs to "roam the streets at random, alerting

officers to people carrying cocaine," to allow drug scanning devices to "scan .

. . all passersby," or to authorize the use of such devices "to identify all

homes in which [contraband] is present." n68

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n65 See 18 U.S.C. § 2518(5) (1994) (stating that electronic surveillance "shall

be conducted in such a way as to minimize the interception of communications not

otherwise subject to interception under this chapter . . .").

n66 See, e.g., United States v. Beale, 674 F.2d 1327, 1336 (9th Cir. 1982),

vacated, 463 U.S. 1202 (1983) ("Nothing would invoke the specter of a

totalitarian police state as much as the indiscriminate, blanket use of trained

dogs at roadblocks, airports and train stations."); United States v. Whitehead,

849 F.2d 849, 857 (4th Cir. 1988) ("Place obviously did not sanction the

indiscriminate, blanket use of trained dogs in all contexts.").

n67 See State v. Riley, 511 So.2d 282, 287-89 (Fla. 1987), rev'd, 488 U.S. 445

(1989) (finding that low-level, indiscriminate helicopter surveillance is a

search); People v. Agee, 200 Cal. Rptr. 827, 836 (Cal. Ct. App. 1984)

(criticizing wide-ranging aerial surveillance as a police-state tactic).

n68 United States v. Jacobsen, 466 U.S. 109, 138 (1984) (Brennan, J.,

dissenting). But see Davis v. Mississippi, 394 U.S. 721, 727-28 (1969) (noting

that dragnet seizures of people to obtain fingerprints might be reasonable if

done in a manner that is not overly invasive).

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Conversely, "dragnet" use of such methods in a context of well-recognized danger

(e.g., magnetometers in an airport) might be enthusiastically welcomed. n69 In

this type of situation, courts have recognized that the pervasiveness of the

search may make it less invasive; n70 in other words, subjecting everyone to a

search may create less of a sense of oppression or intrusion than singling out

particular individuals without suspicion.

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n69 See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L.

REV. 1, 62-63 (1991).

n70 See, e.g., Delaware v. Prouse, 440 U.S. 648, 663 (1979) (finding that while

random stops are impermissible, the "questioning of all oncoming traffic at

roadblock-type stops is one possible alternative"). At least one court has

recognized that "it is not necessary for a checkpoint to stop every car in order

to be systematic but only for officers to be following some pattern that will

minimize their discretion in choosing whether to stop a particular auto." People

v. Estrada, 386 N.E.2d 128, 130 (Ill. App. Ct. 1979).

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The duration of the surveillance and its intensity are also relevant to the

invasiveness issue. Courts have leveled criticism at prolonged observation n71

and at observation that is insufficiently limited in objective. n72 A few courts

have also expressed concern about "blanket" surveillance under which a target's

every public movement is conspicuously observed. n73

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n71 See, e.g., Commonwealth v. Williams, 431 A.2d 964, 966 (Pa. 1981) (involving

officers who observed the interior of a home, including private sexual conduct,

for nine days using binoculars and a nightscope).

n72 See, e.g., Smayda v. United States, 352 F.2d 251, 257 (9th Cir. 1965)

(requiring that observations be limited "to the times when [restroom] crimes are

most likely to occur").

n73 See, e.g., McGee v. Hester, 724 F.2d 89, 90-92 (8th Cir. 1983) (holding that

open and excessive surveillance is grounds for a civil rights action when it

diminishes store sales). But cf. United States v. Knotts, 460 U.S. 276, 284

(1983) (responding to the argument that unlimited beeper surveillance is

unconstitutional, the Court stated: "if such dragnet type law enforcement

practices . . . should eventually occur, there will be time enough then to

determine whether different constitutional principles may be applicable.").

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Finally, the disruptiveness of the surveillance might be a factor. In Florida v.

Riley, n74 the Supreme Court suggested that low-altitude, aerial surveillance

might become a search if conducted with "hazard to persons or property on the

surface" or in a way that interferes with "normal use of the [home] . . . or

curtilage." n75 Lower courts also have looked at the altitude of the aircraft

and resulting disruption. n76 One could imagine similar considerations affecting

the propriety of the use of other types of surveillance such as aggressive,

overt use of video cameras to record a political meeting.

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n74 488 U.S. 445 (1989).

n75 Id. at 451-52.

n76 See, e.g., Gianocola v. West Va. Dept. of Pub. Safety, 830 F.2d 547, 550-51

(4th Cir. 1987) (considering the effect of aerial surveillance on ground

activity); People v. Sneed, 108 Cal. Rptr. 146, 151 (Ct. App. 1973) ("[The

defendant had] a reasonable expectation of privacy to be free from noisy police

observation by helicopter from the air at 20 to 25 feet and that such an

invasion was an unreasonable governmental intrusion into the serenity and

privacy of his backyard."); State v. Rogers, 673 P.2d 142, 143 (N.M. Ct. App.

1983) ("Courts have considered . . . altitude of the aircraft, use of equipment

to enhance the observation, frequency of other flights and intensity of the

surveillance.").

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B. Analysis of the Factors

The multiplicity of factors considered by courts in deciding the scope of the

Fourth Amendment's application to physical surveillance makes any clear

statement of the law in this area difficult. Nonetheless, the Task Force

eventually concluded that some sort of multi-factor approach is both inevitable

and proper given the elusive nature of the privacy concept. n77 Indeed, Standard

2-6.1(c)(ii) essentially replicates the seven factors described above and adds a

few of its own.

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n77 See infra Part IV.C.2.

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At the same time, several of the factors identified by the courts are probably

entitled to very little weight as a matter of constitutional law or policy.

While factors (1) and (7), dealing with the place observed and the minimization

concept, respectively, seem central to any analysis of physical surveillance

technology, the other factors' relevance to this endeavor are suspect to varying

degrees. A brief survey of the ways in which these remaining five factors are

deficient aids the evaluation of the case law and the standards.

Factor (2), which focuses on ease of observation, is suspect for two reasons.

First, it is troublesome to the extent it affords less protection to those who,

for economic or other uncontrollable reasons, cannot take steps to protect their

privacy. n78 More importantly, as many have pointed out, basing the degree of

protection from government surveillance on efforts to evade it runs the risk of

fostering a closed society in which people routinely curtail contact with the

outside world. n79 The advent of highly intrusive technologies exacerbates this

risk, since increasing levels of precaution (e.g., thicker walls, heavily

curtained windows, and avoidance of public exposure) are necessary to render

them ineffective.

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n78 See Ronald J. Bacigal, Some Observations and Proposals on the Nature of the

Fourth Amendment, 46 GEO. WASH. L. REV. 529, 541-42, 542 nn.94-95 (1978) (noting

that privacy exists only for "those wealthy enough to live exclusively in

private places"); Kenneth Troiano, Comment, Law Enforcement Use of High

Technology: Does Closing the Door Matter Anymore?, 24 CAL. W. L. REV. 83, 92

(1988) (noting that only professional criminals and the wealthy can afford the

technology to hide from high technology surveillance).

n79 See, e.g., Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58

MINN. L. REV. 349, 402 (1974).

So far as I am presently advised of the state of the mechanical arts -- anyone

can protect himself against surveillance by retiring to the cellar, cloaking

all the windows with thick caulking, turning off the lights and remaining

absolutely quiet. This much withdrawal is not required in order to claim the

benefit of the Amendment because, if it were, the Amendment's benefit would be

too stingy to preserve the kind of open society to which we are committed and

in which the Amendment is supposed to function.

Id. at 402; see also Robert C. Power, Technology and the Fourth Amendment: A

Proposed Formulation for Visual Searches, 80 J. CRIM. L. & CRIMINOLOGY 1, 38-39

(1989) ("Whatever the Supreme Court meant by the reasonable expectation of

privacy in Katz, it could not have anticipated that the term would be turned

around and used to mandate nearly absolute security before Fourth Amendment

protection attaches.").

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Factor (3), the location of the observer, should also at most be a secondary

consideration in privacy analysis. As with factor (2), those with less

wherewithal may have reduced protection from surveillance simply because they

cannot distance themselves from lawful vantage points. More importantly, the

location of the observer may often have little to do with the degree of privacy

intrusion. Surveillance of one's bedroom (or one's closed-in backyard) is

equally intrusive whether conducted via binoculars or by an officer who has

trespassed and remains hidden from view. Indeed, attributing significance to

physical intrusion may encourage the police to engage in "non-physical" searches

that are actually more intrusive. n80

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n80 See David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 MINN. L.

REV. 563, 591 (1990).

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Factor (4), the object(s) of the surveillance, is of questionable relevance to

the extent it forces distinctions between "intimate" and "non-intimate" objects

-- into which category does one place clothing, book covers, or unoccupied

living rooms? Even if the factor is refocused on whether the object is

contraband, it remains suspect to the extent it permits dragnet searches of the

type described by Justice Brennan in his Jacobsen dissent. n81 On the other

hand, if limited by factor (7), the minimization factor, whether surveillance

reveals only illicit items may be an important and useful variable in

expectation of privacy analysis. n82

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n81 See supra text accompanying note 68.

n82 Cf. Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the

Innocent, 81 MICH. L. REV. 1229, 1246-48 (1983); Richard G. Wilkins, Defining

the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40

VAND. L. REV. 1077, 1121-28 (1987); Steinberg, supra note 80, at 617.

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Factor (5), the availability of the technology to the public, is flawed because

of its close association with the assumption of risk rationale, which many

commentators consider to be tautological: in a real sense, we only assume those

risks of unregulated government intrusion that the courts tell us we have to

assume. n83 Left on our own, our "assumptions" about what types of enhancement

devices we expect to be used, and by whom, might be quite different from what

the courts tell us they should be. n84 Furthermore, giving full weight to this

factor would eliminate privacy expectations even in much of the home because so

many highly intrusive devices (e.g., $ 22,000 map-making cameras) are readily

"available" to the public.

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n83 As Professor Coombs states: "Once we decide the parameters of the

government's power, the claimant 'assumes' whatever risk inheres in that legal

rule." Mary I. Coombs, Shared Privacy and the Fourth Amendment, or the Rights of

Relationships, 75 CAL. L. REV. 1593, 1643 (1987); see also Melvin Gutterman, A

Formulation of the Value and Means Models of the Fourth Amendment in the Age of

Technologically Enhanced Surveillance, 39 SYRACUSE L. REV. 647, 670 (1988)

("[The] 'assumption of risks' [analysis] . . . misses the mark. . . . It

overlook[s] the central issue, the significance of . . . surveillance as a

threat to our sense of security.").

n84 In a study I conducted with Joseph Schumacher, subjects asked to rate the

"intrusiveness" of fifty different search scenarios frequently disagreed with

the Supreme Court's conclusions about expectations of privacy. See Christopher

Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy

in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and

Permitted by Society", 42 DUKE L.J. 727, 740-42 (1993). For instance, while the

Court has held that a dog sniff, see United States v. Place, 462 U.S. 696

(1983), and a trespass on open fields, see Oliver v. United States, 466 U.S. 170

(1984), are not searches, the subjects in the study saw these actions to be as

intrusive as a frisk, which the Court held is a search in Terry v. Ohio, 392

U.S. 1 (1968). See Slobogin & Schumacher, supra, at 737-41.

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Factor (6), whether a device replaces, rather than enhances naked-eye

observation, may ultimately be premised on a false distinction. Presumably, if

the enhancement device does not in some way "replace" police vision, it will not

be used in the first place. If, for instance, the police in Knotts n85 could

have tailed the suspect's car without using a beeper, why didn't they? n86 In

the "confirmation" cases, n87 if the police could see into the premises with the

naked eye, why were enhancement devices used? In each case, the device was

apparently viewed as a more efficient, but not necessary, way of pursuing the

police investigation.

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n85 United States v. Knotts, 460 U.S. 276 (1983).

n86 As one court has stated, if a beeper simply permits the police to do more

easily what they could accomplish with the naked eye, "then there is no need for

the device in the first place. Its value lies in its ability to convey

information not otherwise available to the government." United States v. Holmes,

521 F.2d 859, 866 n.13 (5th Cir. 1975), aff'd en banc by an equally divided

court, 537 F.2d 227 (5th Cir. 1976).

n87 See supra note 62 and accompanying text.

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A hypothetical, but not unrealistic, n88 example illustrates the insidious

effect of incautiously applying these five factors. Suppose the police, while

hiding in bushes at the edge of a farm, use a nightscope with magnification

capability to look in a darkened bedroom window located on the second story of a

house 500 yards away. Given its location (factor (1)), the bedroom is

presumptively entitled to Fourth Amendment protection, especially if the

surveillance is prolonged (factor (7)). But suppose the window curtains are not

drawn (factor (2)); the police do not move beyond the edge of the property

(factor (3)); the only items actually spied are contraband and furniture (factor

(4)); the nightscope is commercially available, albeit costly n89 (factor (5));

and the police are worried that closer, unaided viewing would give away their

presence (factor (6)). A strong case can then be made that the action is not a

search. That result should not be countenanced, as it would allow police to

engage in such conduct at random, without developing any degree of suspicion or

seeking authorization from a magistrate. n90

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n88 See United States v. Lace, 669 F.2d 46, 53 (2d Cir. 1982) (Newman, J.,

concurring) (involving continuous covert surveillance of the curtilage from

private property using a Bushnell spotting scope with 45x magnification, a

Questar lens with 130x magnification, infrared goggles, and a Javelin nightscope

capable of magnifying existing light 50,000 times; in dicta the majority stated

that this was not an invasion of a reasonable expectation of privacy protected

under the Fourth Amendment).

n89 A hand-held Vacro Noctron V scope costs about $ 3,300. A Startron Headstone

(a nightscope mounted on a headset) costs about $ 4,200. See Mike Cook, Scopes

for Nighttime Use a Valuable Tool for Louisiana Department of Wildlife and

Fisheries, BATON ROUGE ST. TIMES, Jan. 8, 1991, at 2C.

n90 For an incisive and comprehensive analysis of a similar hypothetical, see

Harvey Wingo, A 2020 Vision of Visual Surveillance and the Fourth Amendment, 71

OR. L. REV. 1 (1992).

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C. The Narrowness of the Case Law

In short, many of the factors that courts consider in the regulation of physical

surveillance are of dubious value. n91 Insufficient sensitivity to this fact is

not the only failing of the case law, however. As might be expected from a

decisionmaking process that requires a case and controversy and is focused on

constitutional doctrine, the case law leaves many important issues unresolved.

These unresolved issues can be divided into four categories: implementation of

authorized surveillance, selection of rulemakers, selection of decisionmakers,

and accountability.

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n91 In developing their own analyses, for example, Professor Power and Professor

Steinberg make no mention of many of these factors. Professor Power appears to

focus primarily on factors (1) (location), (5) (availability) and (7)

(minimization). See Power, supra note 79, at 87-111. Professor Steinberg's

analysis consists of three components: one analogous to factor (3) (nature of

target) and two related to factor (7), which are balanced to determine whether a

warrant is required. See Steinberg, supra note 80, at 613 (arguing that the

specificity of the information revealed, the duration of the search, and the

extent to which the enhanced search requires officers to focus on a particular

individual are the key variables).

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The two most important implementation issues that have yet to be comprehensively

addressed concern the results of physical surveillance. Consider, for instance,

the fact that video surveillance of public areas can produce hours of tape that

might be useful for any number of purposes: from identifying perpetrators of

violent crime to identifying jaywalkers; from recording speeders to recording

traffic accidents; from discovering which people visit a certain area to

discovering whether an alleged adulterer visits his alleged paramour. The first

issue raised by this reality concerns disclosure. To whom and for what purposes

may such tapes be disclosed? The second issue pertains to retention. For how

long and for what purposes may such recordings be maintained? Current law is

almost silent as to whether information obtained for one purpose may be used for

another, or when recordings of an investigation should be destroyed. n92

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n92 Cf. Britt v. Naval Investigative Serv., 886 F.2d 544, 550 (3d Cir. 1989)

(holding that the Privacy Act, 5 U.S.C. § 552(a) (1996), may bar disclosure of

information obtained by the Naval Investigative Service to the subject's

employer, the Immigration and Naturalization Service, at least when no charges

are filed); Covert v. Harrington, 876 F.2d 751, 755 (9th Cir. 1989) (suggesting

that collecting information for security-clearance purposes might be

incompatible with disclosing it for criminal investigation purposes).

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Several other implementation issues are also left unaddressed by case law and

legislation. One interesting question is whether the subjects of completed

covert physical surveillance are entitled to notice of the surveillance. Another

is whether police should have to validate the reliability of the technology they

use.

The second set of unresolved issues concerns the entities that construct the

rules regulating physical surveillance. Courts will probably be the primary

players when the Constitution is implicated. n93 But implementation of broad

constitutional mandates often requires fine tuning. n94 Furthermore, physical

surveillance that is not restricted by constitutional precepts might nonetheless

justifiably be subject to some limitation. n95 By imposing rules when

constitutional interpretation is not involved, courts might be usurping others'

authority -- legislatures, municipal bodies, and the police themselves could

serve as rulemakers in both situations. n96

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n93 But see Craig M. Bradley, Criminal Procedure in the "Land of Oz": Lessons

for America, 81 J. CRIM. L. & CRIMINOLOGY 99, 131-32 (1990) (arguing that

Congress has the authority, under section 5 of the Fourteenth Amendment, to pass

a code of criminal procedure based on constitutional precepts).

n94 For instance, the FBI has developed informal guidelines on the use of

beepers. Personal Communication with Scott Charney, Chief, Computer Crime Unit,

U.S. Department of Justice (Feb. 10, 1997).

n95 See infra text accompanying notes 123-27, 187-88.

n96 A significant body of literature recognizes the possibility that these

entities can and even should play a role in rulemaking. See, e.g., Amsterdam,

supra note 79, at 423-29 (enumerating the reasons police should be involved in

rulemaking); STANDARDS FOR CRIMINAL JUSTICE § 1-4.3 (2d ed. 1980 & Supp. 1986)

("Police discretion can best be structured and controlled through the process of

administrative rule making by police agencies. Police administrators should,

therefore, give the highest priority to the formulation of administrative rules

governing the exercise of discretion, particularly in the areas of selective

enforcement, investigative techniques, and enforcement methods."); Samuel

Walker, Controlling the Cops: A Legislative Approach to Police Rulemaking, 63 U.

DET. L. REV. 361, 363-64, 382-84 (1986) (arguing that legislation is necessary

to guide police rulemaking); JAMES Q. WILSON, VARIETIES OF POLICE BEHAVIOR

284-90 (1968) (discussing ways in which the community could be involved in

rulemaking).

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Regarding who should decide whether an established rule authorizes a particular

surveillance action, Fourth Amendment case law recognizes numerous situations

where a police officer, rather than a judge, is the appropriate arbiter. n97 It

fails to recognize, however, that other entities could be consulted as well.

Especially in non-exigent circumstances that do not implicate the Fourth

Amendment, legislative bodies, prosecutors, and the public affected by the

surveillance might all be involved in the decisionmaking process. Further, when

the police are delegated decisionmaking responsibility, distinctions might be

made between different levels of decisionmakers (e.g., field officers versus

supervisors).

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n97 For a list of "exigent circumstances" in which field officers may make

warrantless searches, see CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL

PROCEDURE 132-33 (3d ed. 1993).

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Accountability is the final important physical surveillance issue only partially

addressed by the case law. Courts, lacking any direct control over law

enforcement agencies and other government officials, have relied primarily on

exclusionary rules as an enforcement mechanism. n98 But this sanction has been

controversial, to put it mildly. n99 Accordingly, the rule is often not invoked

even when a constitutional violation has occurred, n100 much less when a

subconstitutional rule is involved. In the latter situations, other types of

sanctions might be advisable; indeed, even when exclusion is appropriate

additional sanctions might be imposed. If so, as with rulemaking and

decisionmaking, legislative and administrative entities might be involved in

ensuring accountability for violations of the rules. Moreover, accountability

need not be solely a matter of sanctions. Documentation of surveillance

decisions, periodic review of those decisions, and public dissemination of

information about physical surveillance might also make the police feel

accountable for the surveillance they conduct. n101

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n98 See Mapp v. Ohio, 367 U.S. 643, 652 (1961) (holding that evidence seized in

violation of the Fourth Amendment should be excluded, in part because other

remedies are "futile").

n99 See generally Office of Legal Policy, U.S. Department of Justice, Report to

the Attorney General on the Search and Seizure Exclusionary Rule, 22 U. MICH.

J.L. REFORM 573, 608-617 (1989) (detailing the costs of the exclusionary rule,

including a failure to deter police, lost convictions, disrespect for the

judicial system, failure to provide a remedy for the innocent, and the insidious

effect on probable cause determinations by judges).

n100 See United States v. Leon, 468 U.S. 897, 923-24 (1984) (holding that

exclusion is not required even when the Fourth Amendment is violated if evidence

is seized in good faith reliance on a warrant).

n101 The Electronic Surveillance Standards require annual reports from both

judges and prosecutors concerning the number of surveillance orders applied for,

denied and granted, the duration of the surveillance, the identity of those

authorizing and executing the surveillance, and a number of other facts relating

to surveillance orders. See Electronic Surveillance Standards, supra note 7,

Standard 5.16. They also require that information from the reports be

disseminated to the public. See id. Title III requires public dissemination of

similar information. See 18 U.S.C. § 2519 (1994).

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It is quite understandable why, given their limited role, courts have not dealt

with these types of implementation, rulemaking and decisionmaking, and

accountability issues. Many of these issues are not, and probably should not be,

accorded constitutional status; that does not make them unworthy of

consideration, however. Any attempt to regulate law enforcement use of physical

surveillance comprehensively must at least consider the various options that are

available.

III. THE ABA'S APPROACH: AN OVERVIEW

The regulatory principles that can be derived from the case law governing

physical surveillance are inadequate in a number of ways. Legislation has yet to

fill the legal void. The Task Force's Draft Standards attempt to rectify this

situation by providing guidelines for policymakers, judges, and police

departments.

The Task Force's efforts proceeded through three conceptual stages. The first

stage consisted of identifying the scope of the problem. The second stage

involved the development of general principles that should govern the use of

physical surveillance technology. The final stage involved elaboration of these

general principles in specific contexts.

A. The Categories of Technologically-Assisted Physical Surveillance

In addition to learning the relevant law, an initial goal of the Task Force was

to determine the types of physical surveillance devices that are or may become

available to the police. The Task Force heard expert briefings on this topic

from the Federal Bureau of Investigation, the Science and Technology division of

the National Institute of Justice, the Director of Community-Oriented Policing

Services at the Department of Justice, and two state police representatives. In

addition, the Task Force sought comments on an earlier version of the Draft

Standards from eight police organizations, ranging from the International

Association of Chiefs of Police to the National Sheriffs Association. n102

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n102 The Task Force sought comments from the Fraternal Order of Police, the

International Association of Chiefs of Police, the International Union of Police

Organizations, the Major Cities Chiefs, the National Association of Police

Organizations, the National Sheriffs Association, the Police Executive Research

Forum, and the U.S. Department of Justice (Community Oriented Police Services).

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As a result of this input and its own investigations, the Task Force divided

physical surveillance devices into five separate categories: n103 video cameras,

tracking devices, telescopic devices, illumination devices, and detection

devices (i.e., devices capable of detecting concealed items). n104 These

functional groupings are meant to describe the spectrum of physical surveillance

technologies that exist at present and that might be developed in the

foreseeable future. Only time will tell whether they are adequate in the latter

regard.

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n103 This division was based largely on a memorandum from Wayne LaFave to the

Task Force (July 27, 1995) (on file with the Harvard Journal of Law and

Technology).

n104 Originally, and for almost the full two years of the Task Force's work on

the physical surveillance standards, a sixth category also existed -- aerial

surveillance. This category was ultimately dropped for two reasons. First, to

the extent aerial surveillance makes use of enhancement devices (e.g.,

map-making cameras), the other specific rules already govern. Second, aircraft

are functionally no different from cars, boats and other vehicles; they assist

the use of investigative technology but are not themselves devised for the

purpose of surveillance. Despite the deletion of this category, however, case

law governing aerial surveillance played a significant role in shaping the Task

Force's thinking. See supra Part II.A.

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Video technology has been available for some time, but the past three decades

have seen dramatic advances in the field. With the advent of wide-angle and

pinhole lenses, night vision equipment, and super-magnification capability,

video surveillance allows viewing of home interiors, workplaces, and public

thoroughfares at all times. Cameras can be placed in picture frames, briefcases,

pens, suit lapels, and teddy bears, permitting covert observation in virtually

any circumstance. n105 They also can be used overtly and conspicuously to

observe private establishments and public places. n106 Furthermore, any

surveillance by camera can be recorded, creating a permanent record of

activities within the camera's range. n107

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n105 See, e.g., Thompson v. Johnson County Community College, 930 F. Supp. 501,

506 (D. Kan. 1996) (upholding video monitoring of security personnel locker

area); James Barron, Designer/Surveillance Consultant Sells Pricey Spy Ties, SAN

ANTONIO EXPRESS-NEWS, Sept. 22, 1996, available in 1996 WL 11498094 (describing

various items, including ties and teddy bears, into which video cameras can be

installed); Kim Christensen, Snoopy Sales//Spies: Don't Look Now, But Big

Brother Might Just Be Your Big Brother, ORANGE COUNTY REG., Aug. 2, 1996,

available in 1996 WL 7041469 (explaining the use of pinhole-lens video cameras

in briefcases and wall clocks).

n106 David Kocieniewski, Police to Press Property-Crime Fight and Install

Cameras, N.Y. TIMES, Feb. 5, 1997, at B4 (reporting that the New York City

Police Department will install new video surveillance cameras in some housing

projects and subway stations).

n107 Of course, video surveillance can be accompanied by audio capabilities as

well, a practice governed by the Electronic Surveillance Standards, supra note

7.

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Tracking devices also come in many forms. The simplest is the beeper, which

emits a signal that can be traced. n108 Other tracking devices under development

or already in use include "over-the-horizon" radar; n109 bistatic sensor

devices, which passively pick up various types of emissions (e.g., from a

cellular phone or a light source) or utilize an active sonar-like capability;

n110 and tagging systems, which use a projectile launcher to attach a beeper to

a fleeing vehicle. n111 Intelligent Transportation Systems (sometimes called

Intelligent Vehicle Highway Systems) involve fitting every vehicle in a given

transportation network with a radio unit that transmits to a base station. n112

While being studied principally as a means of controlling traffic patterns,

these systems would also provide a way of tracking vehicles, or of discovering

their location at a previous point in time. n113

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n108 See Note, Tracking Katz: Beepers, Privacy and the Fourth Amendment, 86 YALE

L.J. 1461, 1463-64 (1977) (explaining that beepers emit "periodic signals which

can be picked up on radio frequency [to] establish the approximate location of

the object. . . . Beepers have been used . . . to trace the movement of subjects

on private property, along public thoroughfares, or in public airways . . .

[and] have [been] attached . . . to contraband drugs discovered during border

searches, to motor vehicles used by suspects, to packages or drums of chemicals,

to airplanes, and to an item of personal property").

n109 See Department of the Air Force, Rome Laboratory, Over-the-Horizon Radar,

Advanced Technology Data Sheet (abstract presented at National Institute of

Justice Law Enforcement Technology Program, May 15, 1995) (on file with the

Harvard Journal of Law and Technology).

n110 See Department of the Air Force, Rome Laboratory, Electronic Support

Measurement, Bistatic Sensor Technology, Advanced Technology Data Sheet

(abstract presented at National Institute of Justice Law Enforcement Technology

Program, May 15, 1995) (on file with the Harvard Journal of Law and Technology).

n111 See Idaho Nat'l Engineering Laboratory, Fleeing Vehicle Tagging System

(abstract presented at National Institute of Justice Law Enforcement Technology

Program, May 15, 1995) (on file with the Harvard Journal of Law and Technology).

n112 See U.S. DEP'T OF TRANSP., NATIONAL PROGRAM PLAN FOR INTELLIGENT

TRANSPORTATION SYSTEMS (Final Draft 1994) (on file with the Harvard Journal of

Law and Technology).

n113 See Jeffrey H. Reiman, Driving to the Panopticon: A Philosophical

Exploration of the Risks to Privacy Posed by the Highway Technology of the

Future, 11 SANTA CLARA COMPUTER & HIGH TECH. L.J. 27 (1995).

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Unlike modern video surveillance and tracking systems, some types of telescopic

and illumination devices -- binoculars and telescopes, flashlights and

spotlights -- have been available for more than a century. Today, however, new

technology provides would-be viewers with significantly greater ability to

overcome obstacles created by distance and darkness. Compact night-vision

equipment using infrared technology enables covert observation of virtually any

nighttime activity, n114 while map-making and satellite cameras are able to

focus on objects a few feet across from thousands of feet above. n115 Moreover,

illumination and telescopic capabilities can be combined in one instrument, as

with the well-known Startron binoculars. n116

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n114 For instance, infrared technology used in ITT's Night Enforcer allows night

vision in low-light conditions without any illumination that would give the

observer away. These devices are held in one hand, obtain high resolution, offer

photo and telescopic capability, and prevent "blooming" when bright light

sources are encountered. See ITT Electro Optics Product Division, Night Enforcer

250, ITT Night Vision Equipment (abstract presented at National Institute of

Justice Law Enforcement Technology Program, May 15, 1995) (on file with the

Harvard Journal of Law and Technology). For a general description of many of

these devices, see Gutterman, supra note 83, at 678.

n115 For a description of some of the telescopic equipment in use today, see

supra note 89. With respect to satellite surveillance, see Kelly, supra note 2,

at 737 (describing current ability "to generate and sell images derived from

satellites capable of detecting objects as small as one square yard").

n116 See Cook, supra note 89.

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Detection systems include a wide range of devices using x-ray, heat sensing,

holographic radar, and other technologies. Simple metal detectors will soon be

augmented with hand-held devices that can discern the shape and size of items

underneath a person's clothing, or even behind walls; some of these devices may

also reveal anatomical details. n117 One such tool, developed by Millitech

Corporation, registers radiation emitted from the body and objects concealed on

it. n118 Because these waves readily pass through clothing, and because the body

is a good emitter while dense, inanimate objects tend to be bad emitters,

inanimate objects show up as outlines against the body. A device developed by

Raytheon aims a low-intensity electromagnetic pulse at the subject and measures

the time-decay of each object radiated, which differs depending upon the object.

The device then compares the time-decay of each object with known "signatures"

of items like guns; no image is produced. n119 A third example, from INEL,

measures the fluctuations in the earth's magnetic field caused by ferromagnetic

material, like the metal in a gun. n120 Other mechanisms have been developed for

detecting hidden explosives n121 and heat differentials from a building (which

might signal the use of kleig lights or furnaces connected with the growth or

manufacture of contraband). n122

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n117 See Millitech Corp., Millimeter Wave Concealed Weapon Detection and

Through-the-Wall Imaging Systems (abstract presented at National Institute of

Justice Law Enforcement Technology Program, May 15, 1995) (on file with the

Harvard Journal of Law and Technology).

n118 See id.

n119 See David A. Harris, Superman's X-Ray Vision and the Fourth Amendment: The

New Gun Detection Technology, 69 TEMPLE L. REV. 1, 7-8 n.38 (1996).

n120 See id.

n121 See Golden Engineering, XR150 (information presented at National Institute

of Justice Law Enforcement Technology Program, May 15, 1995) (on file with the

Harvard Journal of Law and Technology).

n122 Such devices are sometimes called FLIRs (Forward Looking Infrared). See

generally Scott J. Smith, Thermal Surveillance and the Extraordinary Device

Exception: Redefining the Scope of the Katz Analysis, 30 VAL. U. L. REV. 1071

(1996).

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B. The General Principles

Having provisionally defined the types of physical surveillance subject to

regulation, the Task Force set out to develop overarching principles to guide

that regulation. The result is Standard 2-6.1, the "general principles"

standard. This Standard consists of seven sections, which are only briefly

outlined here. Detailed discussion of some of the more controversial provisions

is found in Part IV.

The first two sections of Standard 2-6.1 set the conceptual stage for the rest

of the Standards by specifying the various interests that are implicated by law

enforcement use of technologically-assisted physical surveillance. Section (a)

identifies the ways in which such surveillance might be useful to law

enforcement, while section (b) identifies the societal harms it might cause.

More specifically, section (a) recognizes that technologically-assisted physical

surveillance might further many legitimate law enforcement ends, from the

detection, investigation, and deterrence of crime to the protection of the

innocent. Moreover, technology might prove more reliable, less expensive, safer,

and less intrusive than traditional means of conducting surveillance. For

instance, a permanent video camera might be able to identify perpetrators more

accurately and at less expense than police patrols. Beepers can track a target

for prolonged periods, saving human capital and decreasing physical danger.

Weapon-detection devices might permit discovery of concealed weapons from a

distance with greater accuracy and less danger to the police than a frisk, and

with less inconvenience and embarrassment to the target.

At the same time, as section (b) recognizes, the use of these devices "can

diminish privacy, freedom of speech, association and travel, and the openness of

society." Physical surveillance of the home and similar locations obviously

poses significant risks of privacy invasion. But even physical surveillance of

more open areas can threaten values considered important in a democratic

society. Alan Westin, for example, has theorized that the privacy concept

encompasses four "states": solitude, intimacy, anonymity, and repose. n123

Because people occasionally seek these four states even in public spaces,

privacy might be diminished by virtually any type of public surveillance --

including observation by simple binoculars. Technologically-assisted physical

surveillance can diminish other values as well. For instance, freedom of speech

and association can be chilled through conspicuous video or telescopic

surveillance, as Orwell's 1984 n124 vividly demonstrates. The right to travel

might be infringed by the constant monitoring allowed by Intelligent

Transportation Systems. Most generally, the openness of society, a quality

arguably essential to a well-functioning democracy, n125 might be threatened by

pervasive monitoring.

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n123 WESTIN, supra note 1, at 31-32.

n124 GEORGE ORWELL, 1984 (Bernard Crick ed., Oxford University Press 1984)

(1949).

n125

Totalitarian regimes maintain power not through the consent of the governed

but by physical, economic, and psychological control over the populace. Such

governments exercise control through a variety of means, but among the most

essential is the use of the police power to reinforce the message that the

government is superior and in control of the individual. Measures such as

identification checkpoints, random searches, the monitoring of communications,

and the widespread use of informants not only are means of keeping track of

the citizenry, but also act as continuous symbolic reminders that the

citizenry is dominated by the government.

Scott Sundby, "Everyman"'s Fourth Amendment: Privacy or Mutual Trust Between

Government and Citizen, 94 COLUM. L. REV. 1751, 1778-79 (1994).

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To aid in deciding when, and to what extent, particular surveillance should be

regulated, section (c) of the general principles elaborates on the competing

factors outlined in sections (a) and (b). On the law enforcement side, the

nature of the law enforcement objective, the extent to which it can be achieved

through surveillance, and the seriousness of the crime problem being

investigated, deterred, or protected against are all relevant in determining

whether surveillance is justified. With respect to privacy and related

interests, section (c) lists the seven factors drawn from the case law

identified earlier n126 and adds three more: whether the surveillance is covert

or overt; the extent to which the surveillance diminishes or enhances First

Amendment freedoms; and the extent to which "the surveillance technique is less

intrusive than other available effective and efficient alternatives." Thus, for

instance, airport surveillance using video cameras and detection devices might

be more easily justified than ordinary investigative surveillance using this

technology because of the significant interest in deterring terrorism, the overt

nature of such surveillance, and the fact that other methods are more intrusive

or less efficient. Other examples of this balancing analysis are discussed

below. n127

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n126 See supra Part II.A.

n127 See infra Part III.C.

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Surveillance that is duly authorized is still illegitimate if it is not carried

out properly. Section (d) of the general principles lists restrictions on the

manner in which surveillance should be conducted. These include rules dealing

with the scope of the surveillance, the types of devices used, notice to those

observed, and disclosure and maintenance of surveillance records.

First, to avoid discrimination, section (d) provides that subjects of

surveillance should not be selected in an arbitrary manner; this admonition is

especially important where individualized suspicion might not be required, as

with checkpoints. n128 Second, for obvious reasons, "the scope of the

surveillance should be limited to its authorized objectives and be terminated

when those objectives are achieved." n129 Because new surveillance techniques,

some of doubtful efficacy, n130 are continuously entering the market, the third

subsection of this provision cautions that the physical surveillance technology

used "should be capable of doing what it purports to do and be used solely by

officers trained in its use." Fourth, to address situations in which a device

might simultaneously make use of more than one technology covered by the

specific standards (e.g., a video camera with telescopic and illumination

capabilities), section (d) also states that, where there is a conflict between

rules, the more restrictive one applies. n131

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n128 Cf. Delaware v. Prouse, 440 U.S. 648 (1979) (holding that suspicionless,

random stops of cars to check licenses violate the Fourth Amendment).

n129 The appropriate conduct when the surveillance does not achieve its

objective within a certain period of time is unclear under the standard. On this

issue, the preliminary commentary states: "Certainly some [types of procedures]

should have fixed time limits, at least absent an extension granted by the

authorizing person or agency. In some instances, it may suffice that the

surveilling officers are required to determine for the record why they find the

surveillance sufficiently promising to continue it." TENTATIVE DRAFT STANDARDS

CONCERNING TECHNOLOGICALLY-ASSISTED PHYSICAL SURVEILLANCE § 2-6.1(d)(ii)

commentary (Draft, Feb. 20, 1997) (on file with the Harvard Journal of Law and

Technology).

n130 See, e.g., Erik Milstone, Improbable Cause: Prosecutors Say Police May Have

Made Arrests Based on Questionable "Narcotics Divining Rod", 82-JUN A.B.A.J. 32

(1996) (reporting that the Quadro Tracker, a $ 3,000 drug detection device with

sales of over 1,000, "is little more than a black plastic box with a radio

antenna attached to one end that swirls when the box is moved," according to the

Sandia National Laboratories).

n131 For example, although cursory, overt use of an illumination device might

not require any justification, see Standard 2-6.5(b)(i), infra Appendix, if the

device had a video capability it would require a supervisor's finding that the

legitimate law enforcement test had been met, see Standard 2-6.3(c), infra

Appendix.

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The fifth provision in section (d) states that "reasonable notice of the

surveillance should be given at an appropriate time and in an effective manner."

In some situations (e.g., checkpoints), pre-surveillance notice may be necessary

to maximize deterrence and prevent public alarm. n132 In others,

post-surveillance notice to those subjected to the surveillance may be advisable

or even constitutionally required. n133

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n132 Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976) (upholding

checkpoint preceded by signs announcing its presence, in part because "motorists

using these highways are not taken by surprise as they know, or may obtain

knowledge of, the location of the checkpoints and will not be stopped

elsewhere.").

n133 See Berger v. New York, 388 U.S. 41, 60 (1967) (holding a New York

wiretapping statute unconstitutional because, inter alia, it "has no requirement

for notice as do conventional warrants, nor does it overcome this defect by

requiring some showing of special facts").

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The final provisions of section (d) also involve post-surveillance issues. By

permitting disclosure of surveillance results only for "designated" lawful

purposes, provision (d)(vi) attempts to encourage law enforcement officials,

legislatures, and courts to adopt a regime that relies on rules specifying when

and to whom surveillance results may be disclosed. The same design lies behind

provision (d)(vii) requiring "protocols" for the maintenance and disposition of

surveillance records.

The primary objective of section (e) of the general principles is to emphasize

that courts are not the sole source of law, nor are magistrates and police

officers the sole implementers of that law. To that end, the section lists

various entities that might be involved in formulating, monitoring, and

enforcing the regulation of technologically-assisted physical surveillance, and

identifies factors that can help determine when each entity might best be

involved.

The first such factor is the "legal basis" of the proposed rule. If surveillance

implicates the Fourth Amendment, courts are likely to be the source of rules and

sanctions, although legislatures and administrative agencies might attempt to

codify the rules developed. n134 In other situations, whether the legislature,

law enforcement officials, or the public should be involved depends upon the

"invasiveness and urgency of the surveillance," the "need for deference to

expertise in law enforcement," the "extent to which local conditions may vary,"

the "value of sharing decisionmaking," and the "number of people and size of the

geographic area affected by the surveillance."

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n134 See supra text accompanying notes 93-97.

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This general principle departs somewhat from the standard Fourth Amendment model

in which courts make the law and either magistrates (in non-exigent situations)

or field officers (in exigent circumstances) apply it. For example, given the

number of people affected, the primary rules governing placement of public video

cameras or detection-device checkpoints might come from municipal or state

legislatures as well as courts. Because local crime conditions vary and police

have knowledge of those conditions, more specific rules concerning such

surveillance might be developed by individual police departments (a position

emphasized in section (g), discussed below). Further, section (e) suggests that

in determining where any particular camera or checkpoint should be situated,

neither a judge nor a field officer should be involved. Rather, to ensure that

decisions are based on all relevant information and will be accepted by those

affected, those decisions might involve politically accountable police or local

governmental officials, as well as the public to be targeted by the

surveillance. n135 Similarly, the emphasis on the value of shared decisionmaking

suggests that, in non-exigent circumstances not governed by the Fourth

Amendment, a police supervisor should be involved in the surveillance decision.

n136

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n135 This position is taken in the standards governing long-term public video

surveillance and checkpoints using detection devices. See Standards 2-6.3(b)(ii)

& 2-6.6(a)(iv)(D), infra Appendix.

n136 See Standard 2-6.3(b) & (c), infra Appendix (requiring approval from a

politically accountable official for long-term video surveillance of nonprivate

activities, locations, and conditions and approval from a supervisor for other

video surveillance of nonprivate activities, locations and conditions); Standard

2-6.6(a)(iv), infra Appendix (requiring approval from a politically accountable

official for fixed checkpoints and from a supervisor for temporary checkpoints).

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Section (f) of the general principles focuses on the accountability of those

conducting surveillance. Ensuring accountability is especially important in this

context because so much technologically-assisted physical surveillance is covert

and thus does not alert its targets the way a typical search and seizure does.

The standard recognizes that the exclusionary rule is required in some

situations, but adds a number of other accountability mechanisms. First, it

provides that government officials should develop "administrative rules which

ensure that the information necessary for . . . accountability is maintained."

Second, it calls for administrative sanctions for violation of surveillance

rules, in addition to any constitutionally required exclusionary sanctions.

Periodic review of the scope and effectiveness of surveillance is also mandated.

Finally, similar to the reporting requirements under the federal wiretapping

statute, n137 the standard provides that "information about the general type or

types of surveillance being used and the frequency of their use" should be

disseminated to the public in an effort to keep the polity apprised of the

extent of surveillance being conducted.

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n137 See 18 U.S.C. § 2519 (1994) (requiring annual reports concerning frequency

of intercepted wire, oral, or electronic communications).

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Section (g), the final provision in the general principles standard, calls for

administrative rulemaking by law enforcement officials. Especially as to

limitations that are not constitutionally required and that consequently never

receive attention from courts or magistrates, a particular need for elaboration

within the administrative process exists; individual officers cannot be expected

to work everything out for themselves in these situations. Thus section (g)

proposes that departments should develop policies that translate the general

principles and the specific rules of the standards into detailed guidelines for

various forms of physical surveillance.

Again, the purpose of the general principles is to provide a framework for

analyzing regulatory issues raised by physical surveillance. Some of the

principles were used in developing more specific rules. For instance, section

(c), concerning when surveillance is justified, dictates whether probable cause

or some lower level of certainty is required before surveillance can take place.

Similarly, section (e), dealing with the decisionmaker, controls when field

officers, higher level officials, and the public are involved in decisionmaking.

In contrast, the principles described in section (d), concerning implementation

of the surveillance, and section (f), concerning accountability, were meant to

stand on their own without further elaboration in the specific standards. They

were not repeated in each of the specific standards because they usually apply

in the same fashion to any surveillance.

C. Definitions

Standard 2-6.2 contains ten definitions. Half of these definitions explain the

types of enhancement devices governed by the standards -- detection devices,

illumination devices, telescopic devices, tracking devices, and video

surveillance. Other terms defined are "covert" and "overt" surveillance,

"reviewing law enforcement official," "private," and "legitimate law enforcement

objective."

Although the various devices have already been described, the definition of

detection devices in section (b) requires some elaboration. This term is defined

to include any device that detects "the presence of a particular object . . . or

characteristic . . . that is concealed behind opaque inanimate barriers."

Devices that detect microscopic substances or that "see" through human bodies

are not covered by this definition. On the other hand, devices that can "see"

through clothing, wood, metal, or other substances are included. n138

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n138 See supra text accompanying notes 117-22.

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A further distinction is made between general detection devices and those that

are "contraband-specific" and "weapon-specific." Although most detection devices

(e.g., x-ray machines and magnetometers currently used at airports) are of the

former variety, some devices purport to detect only guns or explosives, n139 and

someday devices may simulate the capability of "drug dogs" by signaling only the

presence of contraband.

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n139 See supra notes 119 & 121.

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The general-specific distinction is important in light of case law indicating

that the Fourth Amendment is not implicated by a police action that detects only

contraband. n140 As this section recognizes, whether an object is "contraband"

will depend upon whether the item is "virtually always criminal to possess or

use in the existing circumstances." Carrying drugs like marijuana or cocaine is

virtually always criminal. Carrying a concealed weapon, on the other hand, is

not. Possessing a weapon is virtually always criminal at an airport, but in the

majority of states today, carrying a concealed weapon is legally permissible.

n141 In such states, a device that detected only guns would not be a

contraband-specific device under this definition, although it would be a

weapon-specific device.

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n140 See United States v. Jacobsen, 466 U.S. 109, 123 (1984) (holding that a

field test to reveal whether a substance is cocaine is not a search); United

States v. Place, 462 U.S. 696, 707 (1983) (holding that a canine sniff is not a

search).

n141 See Michael Janofsky, Thousands Seek Permits to Carry Concealed Arms, N.Y.

TIMES, July 6, 1995, at A14 (reporting that twenty-five states have laws that

allow "almost all" adults to carry concealed firearms, while other states

require a showing of "special need").

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Video surveillance, as defined in section (j), also requires elaboration. It is

defined to exclude use of a "lawfully positioned" camera to view or record

activities "occurring within the sight or immediate vicinity of a law

enforcement official (or agent thereof) who is aware of such use." n142 For

example, cameras in police cruisers or on uniform lapels would not be video

surveillance for purposes of the standards. On the other hand, the camera must

be lawfully positioned. Thus, the use of a camera to view what an undercover

agent can see, while normally not encompassed by this definition, constitutes

video surveillance if the camera has been illegally installed in a house.

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n142 This definition is consistent with Supreme Court case law holding that one

assumes the risk that people with whom one converses are electronically

recording the conversation. See On Lee v. United States, 343 U.S. 747 (1952)

(holding that a microphone carried by an informant does not violate the Fourth

Amendment); United States v. White, 401 U.S. 745 (1971) (holding that risk of a

companion reporting to the police is not altered by the use of electronic

equipment).

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The distinction between covert surveillance and overt surveillance is important

for several reasons. Under these standards, post-surveillance notice is not

required for overt surveillance, whereas it may be required for certain types of

covert surveillance. n143 Also, covert video surveillance of nonprivate places

is not regulated as strictly as long-term overt video surveillance. n144

Finally, brief overt use of telescopic and illumination devices to view

nonprivate activities is not regulated at all, while covert use of these

technologies is. n145

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n143 See Standard 2-6.1(d)(v), infra Appendix.

n144 Compare Standard 2-6.3(c), infra Appendix (covert surveillance) with

Standard 2-6.3(b), infra Appendix (long-term overt surveillance).

n145 Compare Standard 2-6.5(b)(i), infra Appendix (overt, cursory use of

illumination and telescopic devices) with Standard 2-6.5(b)(ii), infra Appendix

(covert use of such devices).

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The definitions in sections (a) and (e) resolve close cases in favor of finding

the surveillance to be covert. Consider the use of binoculars from a police car.

One might say such use is overt if there is no attempt to hide from passersby.

However, under this definition, it is covert if the officer intends that the

subject of the surveillance be unaware of the monitoring and if a reasonable

person in the subject's position would be unaware of it.

The definition of "reviewing law enforcement official" in section (g) implements

the call of general principle 2-6.1(e) for administrative involvement by

recognizing multiple levels of decisionmaking authority. At a minimum, this

definition indicates, there are three such levels: the observing, or field,

officer; an immediate supervisor (perhaps a sergeant or captain); and the head

of the department, who will normally be politically accountable either through

the election or appointment process. Given the diversity of command structures,

n146 it would be unwise to attempt any more specificity.

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n146 Police organizations can range from a sheriff's office with one or two

deputies to a huge, military-type operation with ranks ranging from patrol

officer through sergeant, lieutenant, captain and chief. See generally ROBERT H.

LANGWORTHY, THE STRUCTURE OF POLICE ORGANIZATIONS (2d ed. 1986).

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Nevertheless, the three basic distinctions are crucial to the standards'

approach to decisionmaking. Generally speaking, under the standards the field

officer is authorized to make decisions about using physical surveillance

technology only when exigent circumstances exist or the intrusion involved is

minor. n147 A high-level department official or a police supervisor is the

authorized decisionmaker in all other situations in which the Fourth Amendment

does not require a judge to be involved. n148

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n147 In non-exigent circumstances the field officer may, without supervision:

(1) install and monitor tracking devices so long as no entry into a private

place is required for installation, and monitoring of the device does not

disclose the contents of a private place, see Standard 2-6.4(a) - (b), infra

Appendix; (2) use illumination and telescopic devices to observe nonprivate

places, see Standard 2-6.5(b), infra Appendix; (3) use detection devices

whenever a warrantless search is permitted by the Fourth Amendment, see Standard

2-6.6(a)(I)-(iii), infra Appendix, whenever the device is contraband-specific

and is not used to observe a private residence, see Standard 2-6.6(b), infra

Appendix, or whenever the device is weapon-specific and is used in situations

that predicate a weapons search, see Standard 2-6.6(c), infra Appendix.

n148 See supra note 136.

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Two final definitions are particularly important to understanding the regulatory

scheme adopted by the standards. The first is the definition of "private" in

section (f), which simply consists of a cross-reference to case law and to the

factors listed in general principle 2-6.1(c)(ii). This definition is designed to

indicate which situations implicate the Fourth Amendment, and thus trigger

either the warrant and probable cause requirements or, in the case of

checkpoints, other special protections. n149 While amorphous, the definition

does at least identify the universe of variables that might be considered in

making this elusive determination. Furthermore, the second sentence of this

definition states that, where the standards refer to a place, the area is

"private" if physical entry into it would be considered a Fourth Amendment

search. Thus, when the phrase "private place" is used (in connection with

tracking and detection devices n150), Fourth Amendment protection extends to

houses, luggage, and similar items regardless of whether steps have been taken

to ensure privacy or the other considerations found in Standard 2-6.1(c)(ii).

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n149 See Standard 2-6.6(a)(iv), infra Appendix.

n150 See Standards 2-6.4(a) & 2-6.6, infra Appendix.

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The definition of "legitimate law enforcement objective" in section (d) is

closely connected to the definition of "private." Throughout the standards, the

propriety of surveilling a nonprivate area, activity, or condition depends on

whether the surveillance is "reasonably likely to achieve a legitimate law

enforcement objective." n151 In other words, this phrase provides the standard

that police must meet in those situations not governed by the Fourth Amendment.

For obvious reasons, these situations have received little attention from the

courts. n152 Thus, the language of Standard 2-6.2(d) introduces a new regulatory

concept.

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n151 See, e.g., Standard 2-6.3(c), infra Appendix (covert video surveillance)

and Standard 2-6.4(b), infra Appendix (monitoring of a tracking device).

n152 But see Sitz, 496 U.S. at 453 (permitting sobriety checkpoints that are

"reasonable alternatives" to other means of deterrence); Griffin v. Wisconsin,

483 U.S. 868, 878 (1987) (holding that searches of probationers' homes need not

be based on probable cause but rather could occur under a statute requiring only

"reasonable grounds").

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This concept has two essential elements. First, it incorporates the general

principle in Standard 2-6.1(a) that all surveillance should be for an

investigatory, deterrent, preventive, or protective purpose. n153 Surveillance

for ends that are purely political, or for the purpose of harassment, does not

pursue a legitimate law enforcement purpose. n154

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n153 Typically, these purposes relate to criminal activity. However, there may

be some situations when surveillance can legitimately be used to prevent harm

not associated with crime. For instance, an officer monitoring a video camera

panning a public street might observe a pedestrian bend over in an ambiguous but

disconcerting manner; certainly the use of a zoom capability to see if the

person is in distress is legitimate in this situation.

n154 See WESTIN, supra note 1, at 128-29 (describing the use of surveillance to

extract pay off money, learn the plans of opposing politicians, monitor

political protest groups, and eavesdrop on attorney-client conversations).

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The second essential element is the "reasonably likely" criterion. As defined in

section (d), this language requires "articulable reasons" for concluding that,

through the surveillance, an offense will be discovered, come closer to being

solved, or be deterred, or a harm will be prevented. At first glance, this

definition may look like the reasonable suspicion standard defined in Terry v.

Ohio, n155 which requires "specific and articulable" facts as the basis for a

stop or frisk. n156 Note, however, that what is required here is not a finding

that a particular person will be tied to a particular crime (which is

individualized suspicion), but rather articulable reasons that the surveillance

will further investigative, deterrent, or protective ends.

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n155 392 U.S. 1 (1968).

n156 Id. at 21 (holding that the officer "must be able to point to specific and

articulable facts" which warrant the intrusion).

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Suppose, for instance, that police want to videotape the people who go into a

suspected crack house. They are likely to have little or no suspicion with

respect to any given individual who is observed, but they may well have an

articulable reason for believing the videotape will help accomplish an

investigatory end if covert, or a deterrent end if overt. Or suppose police want

to use binoculars to observe, without being discovered, an area known for

dangerous drug trafficking. There may be no suspicion with respect to any

particular person observed, but there may be an articulable reason for

concluding that useful information will be obtained or that the protection of

officers who enter the area will be enhanced.

Although it thus does not require as much of a showing as reasonable suspicion,

the "reasonably likely" language requires that the police articulate their

objectives. Generally speaking, it was the intent of the Task Force that

investigative objectives should be driven by a particular offense or type of

offense, rather than a generalized concern about crime, and that deterrence

objectives be associated with a significant, demonstrable crime problem. Without

these limitations, all police surveillance could be said to have an articulable

basis, since regardless of the location or time, there is always a slim

possibility that some sort of crime or event of future evidentiary significance

will occur.

Thus, while the phrase "reasonably likely" may permit video surveillance of the

public space in front of a federal building, it does not permit surveillance of

a public park simply to have a record of who was there on a particular day.

While using an Intelligent Transportation System to locate vehicles near the

scene of a robbery might be "reasonably likely" to achieve an investigatory

purpose, flying over large stretches of territory with a magnification camera to

locate marijuana patches is not. Individualized suspicion is not required, but

something more than a "Let's-see-what-we-can-find-here" attitude is. n157

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n157 As one court put it, "Law enforcement agencies should not have carte

blanche power to conduct indiscriminate surveillance for unlimited periods of

time of varying numbers of individuals." United States v. Curtis, 562 F.2d 1153,

1156 (9th Cir. 1977).

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Nor should the mere assertion that surveillance will deter crime satisfy the

definition. Presumably, overt surveillance by camera, plane, or other device

would deter crime in any targeted area. However, unless the crime problem is

significant, such surveillance is usually not legitimate under this definition.

n158 To conclude otherwise would permit constant surveillance of virtually all

nonprivate areas, with substantial detriment to privacy (in the sense of repose

and anonymity), freedom of association, and most importantly, freedom from a

sense of oppression. In short, the definitions of legitimate law enforcement

objective (i.e., investigation, deterrence, prevention, protection from crime,

and apprehension of criminals) and of how likely the achievement of that

objective must be (i.e., when there are articulable reasons) are meant to

provide meaningful, but at the same time relatively minimal, limitations on

police conduct.

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n158 In some cases, authorities may wish to use overt (deterrence-driven)

surveillance not because there have been a significant number of crimes in the

targeted area, but because the few crimes that might occur will cause

significant damage. The decision to set up cameras in Atlanta during the

Olympics is a good example of this reasoning.

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D. Standards Governing Specific Types of Surveillance

The final four standards provide specific guidelines for each of the five

physical surveillance technologies. n159 As noted earlier, these standards

represent application of the general principles, particularly Standard 2-6.1(c),

setting out the competing law enforcement and privacy interests that must be

balanced, and Standard 2-6.1(e), dealing with the appropriate decision-maker.

Conversely, the general principles concerning implementation and accountability

are replicated in the specific standards only when special considerations arise.

In other words, when a specific standard states the conditions under which a

given type of surveillance "is permissible," it is assumed that, in addition to

the requirements listed in the standard, law enforcement officials will conduct

surveillance in a nondiscriminatory manner, adhere to legitimate objectives,

appropriately document the surveillance, and so on. As with the discussion of

the general principles, the specific standards will only be outlined here;

discussion of the most controversial issues is left to Part III.

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n159 Illumination and telescopic devices are treated together. See Standard

2-6.5, infra Appendix.

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Standard 2-6.3, concerning video surveillance, contains three sections. Section

(a) governs video surveillance of private locations, activities, and conditions.

In accord with the holdings of most courts, this section places the same

restrictions on video surveillance that are imposed on interception of private

communications. n160 Since the ABA's standards governing communications

surveillance are currently being revised, n161 the final content of section (a)

is still unspecified, although it is clear that nonconsensual, non-exigent video

surveillance of private areas will require a warrant based on probable cause.

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n160 See LAFAVE, supra note 24. A few courts have held that only selected

aspects of Title III apply to video surveillance. See, e.g., United States v.

Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987); United States v. Biasucci, 786

F.2d 504 (2d Cir. 1986). For instance, the provisions of Title III that require

applications to be signed by certain types of prosecutors and which limit

electronic surveillance to certain crimes may not apply to video surveillance.

For criticisms of these cases, see Kent Greenfield, Comment, Cameras in Teddy

Bears: Electronic Visual Surveillance and the Fourth Amendment, 58 U. CHI. L.

REV. 1045 (1991); Cheryl Spinner, Comment, Let's Go to the Videotape: The Second

Circuit Sanctions Covert Video Surveillance of Domestic Criminals, 53 BROOK. L.

REV. 469 (1987).

n161 See supra note 12.

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Section (b) governs long-term overt video surveillance of nonprivate areas

(e.g., cameras on telephone poles). This type of surveillance only need be

reasonably likely to achieve legitimate law enforcement objectives. However,

this determination must be made by either "a politically accountable law

enforcement official or the relevant politically accountable governmental

authority." Moreover, "the public to be affected by the surveillance" must be

notified of "the intended location and general capability of the camera and

[given] the opportunity, both prior to the initiation of the surveillance and

periodically during it, to express its views of the surveillance and propose

changes in its execution, through a hearing or some other appropriate means."

Note that the standard limits public involvement to those "affected by the

surveillance." This group would include those who live in or frequent the area

to be surveilled but not the entire public, which might be insensitive to the

intrusion represented by cameras in someone else's neighborhood. n162

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n162 Note, however, that use of video surveillance in one area might merely

displace activity to another, a possible argument for involving additional

members of the public.

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Section (c) governs all other video surveillance, meaning short-term overt video

surveillance of nonprivate areas (e.g., videotaping a rally) and all covert

video surveillance of nonprivate areas (e.g., installing hidden cameras to

capture a pawn shop thief). Here too, meeting the "reasonably likely to achieve

a legitimate law enforcement objective" test is sufficient. However, the

standard contemplates that in all non-exigent circumstances -- in other words,

most of the time -- the decision as to whether this requirement is satisfied

should be made by a supervisory official, not a field officer.

Standard 2-6.4, on tracking devices, also has three sections. Section (a) covers

the installation of tracking devices. When such installation requires

non-consensual entry into a private place, a law enforcement official must

demonstrate probable cause to believe that the object to be tracked is in the

place entered and that subsequent monitoring of the device will reveal evidence

of a crime. The one exception to this rule is when the installation is "part of

a systemwide program authorized by the legislature," a phrase meant to exempt

installation of transponders in connection with Intelligent Transportation

Systems; in this situation, legislative authorization is sufficient. An

installation that does not require entry into a private place (e.g., placement

of a beeper on the exterior of a car n163 or in an item belonging to the

government) n164 need only meet the legitimate law enforcement objective test.

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n163 Cf. Cardwell v. Lewis, 417 U.S. 583, 591-92 (1974) (holding that taking

paint scrapings from the exterior of a car does not infringe an expectation of

privacy).

n164 Cf. United States v. Jones, 31 F.3d 1304, 1310-11 (4th Cir. 1994) (holding

that the monitoring of a beeper placed in government-owned property which a

suspect then steals is not a search).

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Section (b) governs the use of a tracking device to monitor movement. When the

device is used "to determine whether or where the device is located within a

particular private location," probable cause is required unless one of the

subjects of the monitoring consents. In the latter case, and in all other cases

of monitoring, the legitimate law enforcement objective test applies.

The practical effect of this standard is that police contemplating long-term,

non-consensual tracking will often need probable cause because of the likelihood

that, over an extended period, the tracked object will enter a home or similar

private area. Of course, nothing in this standard prevents police with only an

articulable law enforcement objective from using a device to track an item to a

particular house. n165 However, if the signal on a beeper is lost while the

beeper is in a public place, probable cause is required to relocate the signal

in a private place. Probable cause is also required if public tracking leads the

police to an apartment building or a complex of buildings, so that identifying

the precise apartment or building within which the item is located is impossible

without resort to the tracking device. n166 For these reasons, under this

standard seeking a warrant prior to tracking would often be the safest course

even if installation in a private place is not required. n167

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n165 Both United States v. Knotts, 460 U.S. 276 (1983), and United States v.

Karo, 468 U.S. 705 (1984), appear to hold that using a beeper to discover in

what building an item is located (as opposed to its precise location) is not a

search. In Knotts, 460 U.S. at 285, the beeper led police to a cabin but did not

reveal movement of the beepered container within the premises. In Karo, 468 U.S.

at 720-21, the beeper led police to a warehouse full of lockers, but did not

reveal which locker contained the beeper. In neither situation did the Court

find that the Fourth Amendment was implicated. Apparently, the rationale is that

no personal right is violated until the police discover that the item is in a

specific area associated with a reasonable expectation of privacy. See Clifford

Fishman, Electronic Tracking Devices and the Fourth Amendment: Knotts, Karo, and

the Questions Still Unanswered, 34 CATH. U. L. REV. 277, 341-46 (1985).

n166 Karo stated that the use of a beeper to determine that a container is in a

particular locker would be a search. See 468 U.S. at 720 n.6.

n167 The government complained about this consequence in Karo, 468 U.S. at 718

("For all practical purposes [agents] will be forced to obtain warrants in every

case in which they seek to use a beeper, because they have no way of knowing in

advance whether the beeper will be transmitting its signals from inside private

premises.").

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Section (c) provides that when either installation or monitoring requires

probable cause a judge must authorize that action in writing, except when there

are exigent circumstances, in which case a judge should be consulted as soon as

practicable. A court order may authorize monitoring for a maximum of sixty days

"absent articulable facts demonstrating a need for longer surveillance."

Extensions of sixty days may be authorized by a judge.

Standard 2-6.5 concerns illumination and telescopic devices. It is the most

straightforward standard. For surveillance of private areas it requires probable

cause and, in non-exigent circumstances, a warrant; it otherwise mandates

adherence only to the legitimate law enforcement test. The one exception to the

latter rule is when surveillance of nonprivate areas is "overt and not prolonged

with respect to any given area," in which case no justification is necessary.

Thus, the use of a Startron nightscope to look through a darkened bedroom window

while hiding in bushes at the edge of a property would require probable cause

and, unless exigency existed, a warrant, while the covert use of binoculars to

observe a public square would only need to be reasonably likely to achieve a

legitimate law enforcement objective, and the cursory use of a flashlight to

illuminate bushes in a park or the exterior of a house would require no

justification.

Standard 2-6.6 governs the use of detection devices. It consists of four

sections. Section (a) concerns all detection devices, general and specific. In

contrast to the rules governing other types of physical surveillance, a search

of a private place using these devices is permitted on less than probable cause

in a wide variety of situations, including whenever circumstances authorize a

search incident to arrest, a search based on consent, an inventory search, a

protective frisk, a search of an entryway prior to an emergency entry, or a

protective sweep of an arrestee's premises. In short, such devices may be used

in any situation in which Fourth Amendment law allows a search on less than

probable cause. n168 Further, the standard permits detection devices to be used

at fixed checkpoints that serve "a compelling government interest" in preventing

passage of contraband or weapons, as well as at temporary checkpoints when there

is reasonable suspicion that the checkpoint will discover a person or

instrumentality threatening "a substantial risk of death or bodily harm," or

will discover a person or persons being threatened, as in a kidnaping victim.

n169 Finally, when a detection device search does require probable cause, the

standard eliminates the warrant requirement not only in exigent circumstances,

but also when the place searched is associated with a "lesser expectation of

privacy" (e.g., a car). n170

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n168 See United States v. Robinson, 414 U.S. 218 (1973) (search incident to

arrest); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (search upon consent);

South Dakota v. Opperman, 428 U.S. 364 (1976) (inventory search); Terry v. Ohio,

392 U.S. 1 (1968) (protective frisks); Wilson v. Arkansas, 514 U.S. 927 (1995)

(unannounced entry); Maryland v. Buie, 494 U.S. 325 (1990) (protective sweep

incident to arrest).

n169 Cf. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J.,

dissenting) (commenting how he would "candidly strive hard" to uphold a

roadblock to save a kidnap victim even though the police had to "search every

outgoing car," as "it might be reasonable to subject travelers to that indignity

if it was the only way to save a threatened life").

n170 See California v. Carney, 471 U.S. 386, 393 (1985) (noting a reduced

expectation of privacy due to regulation of vehicles).

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Certain limitations are placed on detection-device checkpoints in Section

(a)(iv). As with the rules governing long-term public video surveillance, a

fixed checkpoint established to detect contraband or weapons must be approved by

"an appropriate politically accountable law enforcement official or governmental

authority"; further, the public affected by such a checkpoint must be notified

of the location and be given periodic opportunities to express its views. A

temporary checkpoint must be approved by a supervisory law enforcement official;

additionally, the anticipated size of the group subjected to the checkpoint

should be "reasonable in light of the purpose for which the device is to be

used."

Section (b) of the detection device standard sets out additional situations in

which detection devices that are contraband-specific may be used. Because these

devices detect only contraband, their use is permitted whenever reasonably

likely to achieve a legitimate law enforcement objective, even if the use

entails search of a private place. The one exception to this rule is when the

device is used to search a "place of residence," in which case probable cause

(and a warrant in non-exigent circumstances) is required. n171 If the use of the

device requires a seizure, grounds for the seizure must exist. n172

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n171 Cf. United States v. Jacobsen, 466 U.S. 109, 140 (1984) (Brennan, J.,

dissenting) (inveighing against giving the police "free rein" to use such

techniques to pry into the home).

n172 As delineated in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny.

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Section (c) concerns weapon-specific devices. Unless these devices can be

classified as contraband-specific (e.g., a gun-detection device in those

jurisdictions where carrying a concealed weapon is illegal), this section

subjects weapon-specific devices to the same restrictions as general detection

devices. There is one exception: weapon-specific devices can be used in any

circumstance in which protective action is permitted, "even absent any

individualized suspicion of danger that otherwise would be required." Thus, if

grounds for a stop are present, a weapon-specific device could be used to

conduct an electronic "frisk" even if no suspicion of danger exists. When the

search is narrowed to what a weapon-specific device detects, the fact that the

officer does not actually harbor a suspicion of danger does not bar the search,

despite the rule of Terry v. Ohio, n173 because the only intrusion into privacy

is to identify whether there is potential danger. n174 For the same reason, this

provision permits, without any articulable suspicion of danger, the use of a

weapon-specific device to "look" beyond an entrance prior to an authorized

entry, and to observe the vicinity of an arrest subsequent to the arrest. n175

Again, the theory is that in contexts where protective action would be

authorized based on individualized suspicion, a device that detects only weapons

can be used even absent that suspicion because it merely ensures that the

protection occurs.

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n173 392 U.S. at 30 (permitting a frisk when the officer "reasonably [concludes]

in light of his experience that criminal activity may be afoot and that the

person with whom he is dealing may be armed and presently dangerous").

n174 Further, the electronic frisk will usually be less intrusive than the

traditional one. See infra note 284.

n175 Because a post-arrest sweep of the immediate vicinity of the arrestee is

already permitted in the absence of suspicion of danger, see Maryland v. Buie,

494 U.S. 325, 334 (1990), this provision adds nothing to law enforcement

authority. Buie also permitted a protective sweep of other areas on the premises

associated with a reasonable suspicion of danger. See id. Standard 2-6.6 would

not permit entry into the surrounding area on less than reasonable suspicion,

but it would allow beaming the device into the area from the point of arrest.

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Finally, section (d) provides that law enforcement agencies should adopt

procedures that address three implementation concerns. To the extent detection

devices have the ability to "electronically strip" passersby, n176 procedures

should be developed to allow the exposure of anatomical information only to

officers of the same gender. This section also cautions police against

inappropriate use of "active" devices that may, through x-ray or other

technology, cause physical harm to the target. n177 Finally and most

importantly, it states that procedures should be adopted "to ensure that the

capabilities of any device used conform as closely as possible to the authorized

objective or objectives of the surveillance." If the objective in using a

detection device is to find weapons, a weapon-specific device is preferable; if

such a device is unavailable, police should use a general detection device that

will achieve the objective with as little revelation of other information as

possible. n178

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n176 Although it does provide images of the body, the Millitech device described

earlier, supra note 118 and accompanying text, purportedly does not reveal

"intimate anatomical details." Dr. G. Richard Huguenin, Millitech Corporation,

Testimony to the Crime and Criminal Justice Subcommittee of the House Judiciary

Committee 3 (July 21, 1994) (on file with the Harvard Journal of Law and

Technology). More powerful imaging techniques could reveal such details.

n177 Devices that rely on radiation could be harmful under certain

circumstances. See id. at 1.

n178 This provision implements the least intrusive means principle of Standard

2-6.1(c)(iv).

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IV. AREAS OF CONTROVERSY

The foregoing description might have created the misleading impression that the

discussion of the Task Force proceeded smoothly from one stage to another in

crisp logical order. In fact, the group progressed in fits and starts, often

backtracking. Preliminary versions of the specific standards were developed

before the general principles were complete. Sections were added, deleted, and

then added back in again; even the categories of physical surveillance subject

to regulation changed. n179 Moreover, as might be expected within such a diverse

group, n180 serious disagreements emerged. Indeed, virtually every provision of

the standards was the subject of a debate over the two years of the project.

Occasionally the Task Force came to an impasse, broken only at later meetings

after further reflection.

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n179 See supra note 104.

n180 See generally Alan Schwartz & Robert E. Scott, The Political Economy of

Private Legislatures, 143 U. PA. L. REV. 595 (1995) (describing the dynamics of

deliberations within American Law Institute rulemaking bodies).

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The discussion below summarizes the most contentious debates, divided into

twenty-one topics. It also provides, in more detail than previous parts of this

Article, the rationale behind the provisions ultimately produced by the Task

Force. In the end, all of these issues were resolved, if not to the complete

satisfaction of each member of the Task Force, then at least sufficiently to

permit each member to endorse the Tentative Draft.

Several issues debated by the Task Force could be termed "fundamental," in the

sense that a failure to resolve them would have grounded the project. These

issues, divided into four categories, are canvassed first; the rest of the Task

Force's debates are discussed in the order in which they are raised by the

standards.

A. Fundamental Issues

1. Mission Impossible: Technological Changes Will Render the Rules Moot

One objection to any project to develop rules governing technologically-assisted

physical surveillance relies on the constant evolution of technology. Any effort

at regulation, a few Task Force members initially argued, will soon be rendered

obsolete by new developments in the field. Just as current detection devices

were unimaginable thirty years ago, new devices that we cannot anticipate and

therefore cannot intelligently regulate will be developed.

For a number of reasons, the Task Force quickly decided that this concern should

not give it pause. First, inaction would only make matters worse. Legislative

and administrative law in this area is almost non-existent, and courts' attempts

to fill the void have been haphazard at best. n181 At the same time, the use of

advanced technology to conduct physical surveillance is no longer an occasional

occurrence; federal and state agencies use sophisticated illumination,

telescopic, and detection devices with increasing frequency. n182 Devising some

type of regulatory framework, even one that will require revision in the near

future, is better than ignoring this burgeoning dimension of police

investigation. n183

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n181 See supra Parts II.A & II.C.

n182 See supra notes 2 & 3. See also Brave New World, TIME, Mar. 3, 1997, at 43

(describing new surveillance technology currently available).

n183 See ARTHUR R. MILLER, THE ASSAULT ON PRIVACY 123 (1971) ("It would be

unwise to deal with each new technological application on an individual basis

divorced from the broader issues, or to delay until its privacy-invading

excesses have come to pass."); Stephen L. Carter, Technology, Democracy and the

Manipulation of Consent, 93 YALE L.J. 581, 584 n.14 (1984) (reviewing MARK G.

YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW AND GOVERNMENT EXPRESSION IN

AMERICA (1983)) ("The fact that the danger has not made itself manifest does not

mean that the danger does not exist.").

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Second, regardless of the technology involved, law enforcement needs (e.g.,

investigation and deterrence) and individual interests (e.g., privacy and

freedom of association) do not change appreciably over time. New technologies

might increase the tension between these needs and interests, but would not

diminish their fundamental relevance. Moreover, when new developments have

necessitated new legal frameworks, the Fourth Amendment and related legal

concepts have proven remarkably adaptable. n184

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n184 For instance, the advent of wiretapping and bugging initially created

difficult analytical problems for the Supreme Court, since conversations are not

"persons, houses, papers or effects" and cannot be "seized" in the same way

these items can. See Katz v. United States, 389 U.S. 347, 365-66 (1967) (Black,

J., dissenting). Nonetheless, the Katz majority's adoption of a privacy analysis

allowed constitutional regulation of an investigative technique not anticipated

by the Framers. See id. at 353.

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Third, the decision to structure the standards around functional categories

(e.g., tracking devices, telescopic devices, and detection devices)

significantly mitigates the consequences of failing to anticipate a particular

technology. These categories should encompass most new developments in physical

surveillance.

2. Guidelines vs. Rules

A second core issue, which was not as easily resolved, concerned whether the

Task Force's standards should be general guidelines or precise rules. This

discussion, which persisted over several meetings, reflected the age-old debate

whether law is best encapsulated in general or specific terms; n185 in

particular, it flowed from two concerns about rules. The first concern was that

detailed rules would not accommodate technological developments as easily as

general guidelines. The second, and more vigorously pressed, concern was that

precise rules are easy to violate inadvertently and thus more likely to lead to

litigation and obstacles to legitimate law enforcement.

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n185 Cf. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89

HARV. L. REV. 1685 (1976) (exploring the advantages and disadvantages of clear

but rigid rules and amorphous but adaptable standards).

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Opposing members of the Task Force believed that a project that produced only

vague guidelines would not be worth the effort. Without relatively specific

rules, they argued, the message of the standards would be muddled. At the least,

this group felt the standards should strongly urge the police to produce

specific rules.

In the end, the standards do not reflect the triumph of one of these positions

over the other, but rather a compromise between the two. The general principles

of Standard 2-6.1 are more like guidelines, while the remaining standards more

closely resemble rules. However, even the latter standards are broad in scope.

Most obviously, the multi-factor definition of privacy and the relatively open

legitimate law enforcement objective test leave considerable room for

discretion. In a number of other standards, the Task Force again opted for

language that avoids straitjacketing law enforcement. n186 But at the same time,

Standard 2-6.1(g) admonishes law enforcement agencies to devise more specific

rules implementing these standards.

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n186 See infra text accompanying notes 209-16 (notice), 217-25 (disclosure and

retention of records), 226-31 (documentation of surveillance decisions), &

232-33 (public dissemination of types of surveillance conducted).

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3. Fourth Amendment Redux or Comprehensive Effort?

A third basic issue was raised by the suggestion from some members of the Task

Force that the group merely try to summarize Fourth Amendment law, without

reaching subconstitutional issues. As with the argument in favor of guidelines,

this stance was motivated by a desire to avoid undermining legitimate law

enforcement efforts.

The response to the latter argument was less equivocal, however. As the

preceding description of the standards makes clear, the Task Force made an

effort to tackle all the issues raised by law enforcement use of physical

surveillancee, not just those addressed by courts. The Task Force concluded that

it could not justify the implication of a simple summary of Fourth Amendment

law: that the vast amount of surveillance not meeting the "search" threshold

n187 should not be regulated at all. For instance, given its Orwellian

overtones, most people would probably agree that placement of video cameras on

street corners requires some type of limitation, despite its apparent immunity

from constitutional strictures. n188 Similarly, as Part II.C explained, a number

of issues regarding implementation and accountability are not addressed by

constitutional doctrine, but are important to any comprehensive regulatory

system.

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n187 See supra Part II.A.

n188 See, e.g., Michael Cooper, With Success of Cameras, Concerns Over Privacy,

N.Y. TIMES, Feb. 5, 1997, at B4 (describing the questionable efficacy of cameras

in some areas and the concerns of some civil libertarians about an Orwellian

society); Timothy Egan, Police Surveillance of Streets Turns to Video Cameras

and Listening Devices, N.Y. TIMES, Feb. 7, 1996, at A12 (discussing, inter alia,

concerns about video viewing of homes, maintenance of recordings, and audio

capability).

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Furthermore, the seemingly simple goal of describing current Fourth Amendment

law on physical surveillance may not be achievable, for even when courts have

regulated technologically-assisted physical surveillance, their holdings have

not been models of clarity. The Supreme Court alone has proffered several

different analytical approaches. n189 When one looks at lower courts, the

variety in holdings and rationales assumes bewildering proportions. For example,

some courts have concluded that thermal imaging of a building requires a

warrant, n190 while others have declared that this activity does not even

implicate the Fourth Amendment. n191 Similarly, some courts have held that the

use of binoculars to look inside a building is a search, n192 while others have

said it is not. n193

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n189 See supra Part II.A.

n190 See, e.g., United States v. Field, 855 F. Supp. 1518 (W.D. Wis. 1994); see

also infra note 281.

n191 See, e.g., United States v. Kyllo, 1996 WL 125594 (D. Or. 1996); United

States v. Penny-Feeny, 773 F. Supp. 220, 226-28 (D. Haw. 1991), aff'd on other

grounds, 984 F.2d 1053 (9th Cir. 1993).

n192 See, e.g., People v. Oynes, 920 P.2d 880 (Colo. Ct. App. 1996); State v.

Carter, 790 P.2d 1152 (Or. Ct. App. 1990).

n193 See, e.g., People v. Arno, 153 Cal. Rptr. 624, 629 (Ct. App. 1979).

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In short, legislators, policymakers, police, attorneys, and trial judges need

more guidance than presently provided on both constitutional and

subconstitutional issues. The standards endeavor to provide that guidance, both

with specific rules and with a statement of the competing values at stake.

4. The Relationship of Public and Private Surveillance

A fourth fundamental issue was whether the restrictions placed on the police

should be greater than those placed on the public. According to one view, if a

private citizen can use a video camera to record activity on a public street

with no restrictions, the police should be able to do so as well. Because

private surveillance of public places is virtually unregulated, the practical

consequence of this position is almost identical to the stance that standards

should reflect only Fourth Amendment law.

One response to this position is, rather than foregoing restrictions on the

police, to limit all technologically-assisted physical surveillance, public and

private. After all, use of these devices by fellow citizens can have a

significant impact on privacy and freedom of action. Furthermore, private use of

physical surveillance technology has increased enormously in recent years.

Indeed, corporate and personal use of video cameras, telescopic devices, and

other types of physical surveillance technology is probably outpacing use by the

government. Perhaps the model provided by communications surveillance law, which

bars the private use of communications interception equipment, n194 should be

followed here as well.

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n194 See 18 U.S.C. § 2512 (1994) (outlawing manufacture, distribution,

possession, and advertising of certain wire, oral, or electronic communications

surveillance devices).

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Nonetheless, with one possible exception, n195 the standards do not attempt to

control the private use of physical surveillance devices. n196 Given the

legitimate purposes that such devices may serve, and their prolific usage by the

general population, any attempt to achieve such control in a sensible manner

would be a significant undertaking best left to other groups. n197

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n195 At present, the Electronic Surveillance Standards recommend the imposition

of criminal penalties for the "possession, sale, distribution, advertisement or

manufacture of a device the design or disguise of which makes it primarily

useful for the surreptitious overhearing or recording of...communications."

Electronic Surveillance Standards, supra note 7, Standard 2.1(b)(iv). Given the

linkage imposed by Standard 2-6.3(a) between video surveillance of private

locations and the Electronic Surveillance Standards, a person who possesses a

video device designed primarily for covert observation of private activities

(e.g., a teddy bear camera) or who uses such a device covertly might be

committing a crime. In light of this possible result, whether the Task Force

will retain this linkage remains to be seen.

n196 The proposed standards avoid explicitly addressing government use of

information collected through private physical surveillance. Cf. United States

v. Jacobsen, 466 U.S. 109 (1984) (discussing when replication of a private

search by a public actor is a Fourth Amendment search); Walter v. United States,

447 U.S. 649 (1980) (same).

n197 The ABA Criminal Justice Section Council has just established a Task Force

on Policing Privatization, which might consider such issues. Letter from Michael

Johnson, Chair, Criminal Justice Standards Committee, to Members, Policing

Privatization Task Force (Apr. 9, 1997) (on file with the Harvard Journal of Law

and Technology).

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Thus the question for the Task Force remained whether the standards should

impose limitations on activity by the police that ordinary citizens can perform

with impunity. For instance, though use of Startron binoculars to peer into a

private area might trigger a tort or privacy law action, n198 surveillance of

public areas is not likely to bring any legal sanction. Accordingly, some

members of the Task Force wondered why police should have to abide by even

minimal restrictions on their surveillance of public places.

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n198 "Several successful actions for invasion of privacy have been brought

against defendants who have utilized secret video cameras, see-through panels,

peepholes, hidden microphones, or window-peeping." H. Morley Swingle & Kevin M.

Zoellner, Criminalizing Invasion of Privacy: Taking a Big Stick to Peeping Toms,

52 J. MO. B. 345, 346 (1993).

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The Task Force concluded, however, that the government's vast resources and its

power to deprive people of freedom distinguish it from private actors. The Bill

of Rights limits state action, not private action. n199 Put another way, a

democratic government must trust its citizens in order to earn its citizens'

respect. n200 The government shows no trust if it indiscriminately uses its

power against the citizenry. Regardless of what private individuals may be able

to do, self-interest mandates that the government refrain from arbitrary,

unjustifiable surveillance. n201

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n199 See, e.g., Burdeau v. McDowell, 256 U.S. 465 (1921).

n200 Cf. Sundby, supra note 124, at 1755 (1994) (arguing that the fundamental

purpose of the Fourth Amendment and of "maintaining a constitutional system" is

the promotion of "government-citizen trust").

n201 This reasoning might suggest that the standards should govern all

government use of technologically-assisted physical surveillance. However, such

surveillance comes in many guises that are not subject to easy categorization:

secret service agents charged with protecting federal officials; national

security organizations designed to ferret out terrorists; regulatory bodies

obligated to monitor public health and safety; and transportation and court

agencies concerned with protecting those who use their facilities. Rather than

address the complex issues that arise in these varied contexts, the introduction

to the standards will make clear that the term "law enforcement" as used in the

standards is meant to encompass only the last-named area plus typical police and

detective work.

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B. General Principles

5. Is Privacy Invasion All We're Worried About?

The Task Force expended considerable energy on the phrasing of sections (a) and

(b) in Standard 2-6.1 -- which state the reasons why physical surveillance

technology is needed and why it may need to be regulated -- because these

sections set the stage for the rest of the standards. This effort was aimed at

making these important sections as comprehensive and clear as possible. There

was little disagreement about content.

However, one substantive issue did arise in connection with section (b). The

penultimate draft of this section included a more detailed recitation of values

that might be diminished by unregulated physical surveillance. In addition to

talking about the "chilling effect" that technologically-assisted physical

surveillance might have upon "constitutionally protected activities, such as

freedom of speech, association, or travel," the earlier draft stated that

regulation is needed when such surveillance would pose "a significant

infringement of other widely shared values in a democratic society, including

the enjoyment of anonymity and places of repose, the absence of a pervasive

police presence, and the absence of intensive official scrutiny except in

response to suspicious conduct." n202 Some members of the Task Force

successfully objected to the inclusion of this language on the ground that it

was too vague and might lead to the regulation of innocuous law enforcement

behavior. Because the deleted language captures interests that are not clearly

encompassed by the privacy concept, this objection came close to reprising the

idea that the standards should deal only with Fourth (and First) Amendment

concerns.

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n202 Standard 2-6.1(b) (draft of Feb. 10, 1997) (on file with the Harvard

Journal of Law and Technology).

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The practical effect of the deletion is probably trivial, however. Very little

technologically-assisted physical surveillance is left unregulated by the

specific standards. n203 While much surveillance may take place upon the minimal

showing required by the legitimate law enforcement objective test, this test,

along with the implementation and accountability provisions, imposes some

limitations on even routine use of surveillance devices in nonprivate areas.

Furthermore, the current phrasing of section (b) refers not only to privacy and

First Amendment freedoms, but also to the "openness of society" as a value

worthy of protection.

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n203 The only obvious example is overt, unprolonged use of telescopic and

illumination devices. See Standard 2-6.5(b)(I), infra Appendix.

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6. Should the Use of the Least Intrusive Device be Required?

When deciding whether a particular type of surveillance should take place, some

members of the Task Force thought that the use of the least intrusive technique

should be mandated, or at least strongly encouraged. As technological advances

make more intrusive surveillance alternatives available, these members argued

that the need to avoid "investigative overkill" becomes greater. n204 Further,

while previously the most intrusive alternatives were also the most

time-consuming and expensive ones -- so that the least intrusive alternative was

typically selected as a matter of efficiency -- technology now provides options

that are highly intrusive but relatively inexpensive and not manpower intensive.

For instance, putting a cop on every corner is fiscally impossible for most

jurisdictions; putting a camera on each block may not be.

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n204 See supra Part I.

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At the other end of the spectrum, some members of the Task Force expressed

significant antipathy toward any reference to the least intrusive means concept,

noting that the Supreme Court has explicitly refused to endorse this requirement

in the Fourth Amendment context. n205 They also voiced concern that such a

limitation would require police to make difficult decisions about relative

intrusiveness which might relegate investigative effectiveness to a secondary

role. For instance, how does one evaluate whether a video camera on a telephone

pole is less intrusive than a police officer on every street corner, and of what

relevance is the fact that the latter method of surveillance is much more

expensive?

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n205 See, e.g., Illinois v. Lafayette, 462 U.S. 640, 647 (1983) ("The

reasonableness of any particular governmental activity does not necessarily or

invariably turn on the existence of alternative 'less intrusive' means.");

United States v. Martinez-Fuerte, 428 U.S. 543, 556 n.12 (1976) ("The logic of

such elaborate less-restrictive-alternative arguments could raise insuperable

barriers to the exercise of virtually all search-and-seizure powers.").

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The Task Force decided that Supreme Court case law, as well as pragmatic law

enforcement and economic considerations, require a measured approach. Thus, the

standards indicate that relative intrusiveness should be a consideration but not

a dispositive criterion, in selecting a particular technology. n206 Further,

relative intrusiveness is to be evaluated in light of other "available effective

and efficient alternatives" n207; law enforcement is not required to sacrifice

effectiveness or to ignore resource constraints in deciding whether a particular

surveillance technique is permitted. n208

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n206 See Standard 2-6.1(c)(iv), infra Appendix.

n207 Id.

n208 For a critique of this approach, see Nadine Strossen, The Fourth Amendment

in the Balance: Accurately Setting the Scales Through the Least Intrusive

Alternative Analysis, 63 N.Y.U.L. REV. 1173 (1988).

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7. Should People Know They've Been Watched?

Under both the Electronic Surveillance Standards n209 and federal law, n210

post-surveillance notice of wiretapping and bugging must be given to all those

listed on the warrant application. Initially the Task Force's standards mandated

the same requirement for all covert physical surveillance that requires probable

cause (e.g., surveillance of the interior of a home). n211 As in the

communications surveillance context, n212 the primary reason for this rule was

that the intrusion associated with such surveillance is significant, yet usually

undiscovered by the target unless prosecution takes place. Even when a warrant

is sought and a judge reviews the surveillance decision, a notice requirement

provides effective disincentives to questionable conduct because the police know

their targets are more likely to learn of misconduct. When the surveillance does

not require a warrant, a notice requirement is even more important because no

one will discover any abuse of discretion unless prosecution takes place, in

which case the effect of hindsight bias will often favor the police. n213 As

noted earlier, n214 notice in probable cause situations might even be

constitutionally required under Berger v. New York. n215

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n209 Standard 5.14 of the Electronic Surveillance Standards, supra note 7,

provides:

As soon as practicable but not later than ninety days after the return is made

to the judicial officer . . . the judicial officer should cause to be served

on the person named in the order of authorization or approval or the

application for such an approval . . . an inventory which should include

notice of--

(i) the entry of the order or the making of the application;

(ii) the date of the entry of the order or of the denial of the application;

(iii) the period of authorized, approved or disapproved overhearing or

recording;

(iv) the overhearing or recording, if any, of communications; and

(v) the period, if any, of actual overhearing or recording.

Upon a showing of good cause made to the judicial officer, the serving of the

inventory should be postponed.

n210 See 18 U.S.C. § 2518(8)(d) (1994).

n211 See Standard 2-6.1(d)(iv)(B) (draft of Nov. 16, 1996) (on file with the

Harvard Journal of Law and Technology).

n212 The commentary to the PROJECT states:

The possibility of surreptitious surveillance is, of course, the most telling

objection to any system of permissive use. An inventory procedure removes most

of the source of that objection. When an individual receives the inventory he

will, moreover, then be in a position to take whatever action is available to

him to suppress, if possible, the evidence obtained or to recover, where

appropriate, civil damages.

PROJECT, supra note 7, at 161-62 (citation omitted).

n213 Cf. JEROME SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC

SOCIETY 221, 223-24 (2d ed. 1975) (noting that when searches uncover

incriminating evidence, courts' perceptions of the reasonableness of such

searches shift in favor of the police).

n214 See supra text accompanying note 133.

n215 388 U.S. 41 (1967).

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However, some members of the Task Force and several police organizations were

worried that post-surveillance notice would burden law enforcement, or

prematurely alert a suspect and foil an investigation (especially in conspiracy

and similar investigations). The latter concern could presumably be addressed

through language, like that found in electronic surveillance laws, that allows

post-surveillance notice to be postponed for good cause. n216 Nonetheless, the

Task Force decided that the standards should merely require "reasonable notice"

of covert surveillance and that the commentary to the standards should flesh out

the competing interests involved.

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n216 Standard 5.14 of the Electronic Surveillance Standards permits postponement

upon "a showing of good cause," see supra note 208, requiring law enforcement to

show how the inventory will damage an investigation.

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8. Disclosure and Retention of Surveillance Results

The recording ability of physical surveillance technology, particularly in

connection with video surveillance and Intelligent Transportation Systems,

raises the potentially difficult issues of disclosure and retention. Consider

two examples in addition to those given earlier. n217 First, suppose the

government conducts surveillance of a business to determine whether drug

importation laws are being violated. Assuming the surveillance is legally

justified, the use of any information obtained is certainly permissible in a

criminal prosecution on drug importation or related charges. However, the

information might also be sought by other government agencies (e.g., an

environmental protection unit), by competitors, or by private news

organizations. As another example, suppose a school's video surveillance tapes

of its halls are sought by police investigating criminal activity. n218 Should

disclosure be automatic in these situations? If not, what rules should govern

the disclosure and retention of surveillance records?

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n217 See supra text accompanying note 92.

n218 This issue was expressly avoided by the Supreme Court in New Jersey v.

T.L.O., 469 U.S. 325, 333 n.3 (1985).

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Because these questions involve obtaining pre-existing information, they are

best answered by standards governing transactional surveillance. n219 However,

the Task Force believed that the physical surveillance standards should at least

touch upon the disclosure and retention issues for two reasons. First, the

propriety of a search or seizure depends in part upon what is done with the

information obtained. Even if the police have probable cause to search a house,

a decision to display all of its contents in the public square is unreasonable.

Second, dissemination of information is itself an invasion of privacy. Such

dissemination may be permissible if consistent with the purpose of a duly

authorized search, but a violation of privacy rights may occur if the

information obtained is used for other purposes.

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n219 For a definition of this term, see supra note 13 and accompanying text.

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Starting from this premise, an earlier version of the standards provided that

disclosure of surveillance results "should be permitted only for purposes

consistent with the purpose of the surveillance or those collateral uses

determined to be lawful by previously promulgated statute, court decision or

regulation." n220 The rationale for this approach is threefold: (1) legislative,

judicial, or agency action is more likely to be based on consideration of all

the complex state and individual interests involved; n221 (2) disclosures

motivated by discriminatory or vindictive motives are less likely; and (3)

judicial review of any disclosure decision is facilitated. n222

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n220 See Standard 2-6.1(d)(vi) (draft of Feb. 10, 1997) (on file with the

Harvard Journal of Law and Technology).

n221 As the Court recognized in Michigan Dep't of State Police v. Sitz, 496 U.S.

444, 453-54 (1990), the reasonableness of a search is significantly enhanced if

the governing rules come from legislative or high administrative officials

rather than the street police themselves, and if the police are given relatively

little discretion in construing these rules.

n222 See Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the

Fourth Amendment, 74 TEX. L. REV. 49, 85-92 (1995).

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An earlier version of the standards also proposed that records should be

destroyed after being used for their intended purpose or when that purpose is

"no longer likely to be achieved." n223 This provision was based on a similar

rationale. If a duly promulgated law requires retention of the records,

presumably some public debate about the propriety of such action has taken

place. However, if no such law exists then the proposal would have required

their destruction in the indicated circumstances. Fearful of extensive video

libraries that would retain information on vast numbers of individuals in

perpetuity, some members of the Task Force argued that even this protection was

not enough and that records should be destroyed after a fixed time, regardless

of their potential use.

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n223 See Standard 2-6.1(d)(vii) (draft of Feb. 10, 1997) (on file with the

Harvard Journal of Law and Technology) ("Protocols should be developed for the

destruction of surveillance records not required to be maintained by law. Such

records should be destroyed (A) after they are used for their intended purpose,

or (B) when that purpose is no longer likely to be achieved.").

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All of these proposals were rejected by the Task Force because they might

prohibit or render impossible the use of highly probative information simply

because the use was not anticipated by law. Accordingly, the language submitted

to the Criminal Justice Section Standards Committee n224 merely required that

disclosure be "for lawful purposes," which suggests that disclosure and

retention are permitted so long as not prohibited by a statute or regulation.

The Committee added the word "designated" before the word "lawful" to indicate

that, contrary to the Task Force's formulation, some legal authorization should

exist, at least for disclosure. n225 However, given the ambiguity of the word

"designated," such legal authorization might consist simply of a directive by a

supervisor to disclose particular information.

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n224 Recall that the Committee is the first layer of review in the ABA's

standards review process. See supra note 14. In its February, 1997 meeting, the

Committee began its discussion of the standards. The change reported in the text

below was one outcome of this meeting.

n225 See Standard 2-6.1(d)(vi), infra Appendix.

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A final related issue should be noted. Assuming that adequate protection against

inappropriate disclosure to non-law enforcement entities exists, a few members

of the Task Force argued that if these disclosure rules are strictly adhered to,

other restrictions on covert surveillance could be minimized. This position

assumes that the surveillance itself, because undetected by the targets, does

not harm any individual interests, and that disclosure of results, because

limited to law enforcement purposes and other authorized objectives, does not

harm innocent people.

The second assumption, at least, is erroneous. Even if the surveillance results

are used only against the guilty, the knowledge that the government is

conducting covert surveillance without restraint would ultimately affect

everyone's sense of security. Further, if information is disclosed for purposes

other than law enforcement, even if pursuant to a pre-existing rule, the privacy

of innocent people may be infringed. Thus, while proper precautions regarding

disclosure can minimize the injury to privacy, they do not obviate the need for

standards requiring justification for a particular surveillance.

9. Is Documentation Necessary to Articulation?

When surveillance is based on probable cause, the reasons for the surveillance

will normally be documented in a warrant application and thus be available for

judicial or administrative review. n226 However, for searches conducted without

a warrant due to exigent circumstances, no such application will exist and a

separate written record of the decision to search may not be created. Law

enforcement officers are even less likely to record their reasons for acting

when subconstitutional conduct not requiring probable cause is involved.

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n226 See, e.g., FED. R. CRIM. P. 41.

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To ensure that the reasons for surveillance are "articulated" when a warrant is

not required and to assist in periodic review of surveillance usage, some

members of the Task Force proposed a documentation requirement. Thus, an earlier

version of the standards provided for documentation identifying the official or

officials responsible for the decision to conduct particular surveillance. n227

Moreover, this earlier version required that the reasons for the surveillance be

documented, except when the surveillance decision was made by a field officer

and the surveillance was "cursory." n228

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n227 See Standard 2-6.1(f)(I) (draft of Feb. 10, 1997) (on file with the Harvard

Journal of Law and Technology).

n228 See Standard 2-6.1(f)(ii) (draft of Feb. 10, 1997) (on file with the

Harvard Journal of Law and Technology). The relevant text read:

(f) Accountability and Control. Government officials should be held

accountable for use of regulated technologically-assisted physical

surveillance technology by means of:

(i) Documentation of the official or officials responsible for the decision

to conduct particular surveillance.

(ii) Documentation of the reasons for the surveillance. Where the final

decision to conduct particular surveillance is made by a nonsupervisory law

enforcement officer, and the surveillance is not cursory in nature

(A) that officer should make a contemporaneous record articulating the basis

for undertaking the surveillance and noting the duration of the

surveillance, and

(B) such records should periodically be reviewed and evaluated by a

supervisory law enforcement officer.

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This earlier version was rejected in favor of the current formulation, which

requires administrative rules to ensure that "the information necessary for

[official] accountability be maintained." n229 Again, the concern that onerous,

litigation-producing, and perhaps useless burdens might be placed on law

enforcement officers won the day over the more stringent rule. For instance,

some members of the Task Force thought requiring field officers to record every

prolonged use of binoculars would not appreciably protect privacy but could lead

to obfuscating defense objections when such records were incomplete or

non-existent. The current language is thus not as specific as the earlier

version regarding the precise information that must be maintained. However, it

does require departments to keep some accountability information, perhaps at

least a record of how a particular surveillance was conducted and of who

conducted it.

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n229 See Standard 2-6.1(f)(I), infra Appendix.

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On the issue of accountability, early on the Task Force unanimously agreed that

exclusion of evidence is an appropriate remedy only when the Fourth Amendment is

violated. In all other situations, disincentives should depend upon

administrative and other sanctions. Thus, the standards do not impose a

statutory exclusion remedy of the type found in the original version of the

Electronic Surveillance Standards n230 or Title III. n231

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n230 See Electronic Surveillance Standards, supra note 7, Standard 2.3(c)

(permitting a suppression motion by "any party aggrieved by the overhearing,

recording, use, or disclosure of such communications or evidence derived

therefrom"). An earlier version of this standard that required exclusion only

when "substantial rights" are violated was removed by the 1986 amendments.

n231 Title III requires exclusion in a number of situations in which the Fourth

Amendment probably would not. See, e.g., 18 U.S.C. § 2517(5) (1994) (allowing

exclusion for failure to disclose to the judge the interception of

communications not related to the offense specified in the wiretap order "as

soon as practicable"); 18 U.S.C. § 2518(8) (1994) (allowing exclusion for

failure to seal recordings); 18 U.S.C. § 2518(9) (1994) (allowing exclusion for

failure to provide an inventory at least 10 days before trial).

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10. Giving Away Police Secrets

Considerable debate focused on whether law enforcement should periodically

disseminate to the public statistics about the frequency of

technologically-assisted physical surveillance, as it must under the law

governing wiretapping and bugging. n232 On the one hand, the public and its

representatives cannot intelligently assess the scope and impact of

technologically-assisted physical surveillance without information of this sort.

On the other hand, law enforcement agencies do not want to alert potential

criminals to specific techniques; indeed, there is perhaps an inclination on the

part of law enforcement to keep the public ignorant of the use of covert

surveillance technology. n233 As a compromise, the current standard requires

public dissemination of the frequency of use in terms of the general

surveillance categories created by these standards (e.g., private video

surveillance, public video surveillance, and tracking devices). Particular

technologies need not be revealed.

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n232 See supra note 101.

n233 See Richard McAdams, Tying Privacy in Knotts: Beeper Monitoring and

Collective Fourth Amendment Rights, 71 VA. L. REV. 297, 328 n.145 (1985) (noting

the difficulty of determining how often beeper surveillance occurs given the

lack of records and the reluctance of police to keep or disclose such records).

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C. Definitions

11. The Legitimate Law Enforcement Objective Standard

Part II demonstrated that the Fourth Amendment imposes no limitations on many

types of surveillance of public places. n234 Nonetheless, earlier versions of

the standards endorsed a reasonable suspicion requirement in a number of public

surveillance contexts. n235 Behind these restrictions was the belief that

surveillance of public activity could have particularly intrusive or oppressive

consequences in these situations. n236 However, as noted earlier, n237 many

members of the Task Force thought that, given the courts' lack of action in this

area, such surveillance should be essentially unregulated. The compromise which

emerged was the "reasonably likely to achieve a legitimate law enforcement

objective" test, which is meant to impose minimal, but meaningful, justificatory

conditions on surveillance of nonprivate areas. n238

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n234 See supra Part II.A.

n235 See Standard 2-6.3(c) (draft of Aug. 5, 1996) (on file with the Harvard

Journal of Law and Technology) (requiring, with respect to covert video

surveillance, either reasonable suspicion or documentation of the "expected

frequency" of the "particular type of criminal activity" and "that other methods

of deterrence would be less effective"); Standard 2-6.4(b)(ii) (draft of Oct.

28, 1996) (on file with the Harvard Journal of Law and Technology) (requiring

reasonable suspicion for the monitoring of a beeper in nonprivate areas);

Standard 2-6.5(b) (draft of Aug. 5, 1996) (on file with the Harvard Journal of

Law and Technology) (requiring reasonable suspicion for the use of illumination

and telescopic devices to view nonprivate areas).

n236 For instance, because targets are unaware of its occurrence and thus cannot

take steps to minimize exposure, covert surveillance may well reveal far more

intimate detail than overt video surveillance. For discussion of the rationale

for imposing a reasonable suspicion requirement in connection with the tracking

of public movements, see infra note 268.

n237 See supra text accompanying notes 187-93.

n238 For an argument that reasonable suspicion should be required for

surveillance "intrusions" amounting to less than a Fourth Amendment search, see

Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-first Century, 65

IND. L.J. 549 (1990).

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Although this phrase requires that the law enforcement objective be

"articulable," some members of the Task Force believed that the standard was

still too amorphous. In an effort to make the test somewhat more restrictive and

concrete, one version of the definition explicitly required that the police be

able to articulate a particular crime or type of crime they hoped to deter,

prevent, or investigate, or a "substantial" crime problem that required

deterrence. n239 The Task Force was concerned, however, that such an addition

might prevent clearly reasonable surveillance (e.g., use of video cameras to

scan the Olympic Park in Atlanta). At the same time, it directed that the

commentary to the definition endorse particularity and substantiality as two of

the criteria for determining reasonableness. n240

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n239 See Standard 2-6.2(e) (draft of Oct. 28, 1996) (on file with the Harvard

Journal of Law and Technology). The relevant text read:

(e) Legitimate law enforcement objective. Investigation, deterrence or

prevention of an offense defined by statute, and prevention of other physical

harm. An action by a law enforcement officer is "reasonably likely to achieve

a legitimate law enforcement objective" if there are articulable reasons for

concluding that the action will:

(i) discover the commission of a particular offense or type of offense;

(ii) further an ongoing investigation of a particular offense or type of

offense;

(iii) deter or prevent a particular offense;

(iv) deter a significant number of offenses in a given area; or

(v) prevent one or more persons from suffering serious physical harm.

n240 See supra text accompanying notes 153-58.

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12. The Definition of Privacy

Much discussion centered around how the Task Force should define those

situations that warrant the first tier of protection (i.e., those that require

probable cause). For instance, an early version of the standards referred to the

first-tier domain as a "home or similar location." n241 Another approach

discussed, but never put into draft language, required justification based on

the sophistication of the device in question. However, the Task Force, like the

courts, came to see privacy as a multi-factor concept, and thus ultimately

defined privacy by simply listing relevant considerations. Although this

approach obviously lacks the clarity that the Task Force had hoped to provide,

the group concluded that it was the best way to define privacy: there are simply

too many permutations involving technology to permit bright-line statements

about activities or conditions that deserve the Constitution's greatest

protection.

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n241 See Standards 2-6.3 to 2-6.7 (draft of Oct. 28, 1996) (on file with the

Harvard Journal of Law and Technology).

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Consider one illustration of the problem. As indicated above, one possible

definition would have been to declare the interior of the home and similar

locations "private," thereby dictating that such locations can never be observed

without probable cause. While this approach would be easy to apply and would

even come close to describing Fourth Amendment law, it would foreclose -- unless

probable cause existed -- enhanced surveillance from a public sidewalk of

activity taking place directly in front of uncurtained windows and open front

doors, even if only a flashlight or video camera was used in the observation.

Although there are good reasons to be reluctant to give much weight to such

circumstances, n242 both case law and logic demand that they be given some

effect. Thus, the definition adopted incorporates the courts' admittedly

vacillating positions on what is private and what is not. n243

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n242 See supra Part II.B.

n243 Another regulatory approach would be to prohibit certain types of

surveillance in certain situations (e.g., no satellite surveillance of homes, no

use of detection devices to see through clothing). Given society's willingness

to permit electronic eavesdropping, which may be even more intrusive than the

examples just given, this categorical approach seems overly restrictive. That

being said, it should be noted that the flexible approach adopted here is not

necessarily inconsistent with barring the most intrusive types of surveillance

or making them extremely difficult to justify. In other words, application of

the factors in Standard 2-6.1(c) might lead to a conclusion that certain types

of surveillance are not justified by any legitimate law enforcement objective.

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D. Video Surveillance

13. Unresolved Issues Involving Surveillance of Private Locations

Because the ABA's revised standards on communications surveillance have yet to

be finalized, section (a) of the video surveillance standard, which equates

video surveillance of private locations with interception of private

communications, leaves a number of questions unanswered. Four issues are

canvassed here, but are not resolved.

First, should there be a provision regulating the installation of surveillance

devices? Both the Electronic Surveillance Standards and Title III avoid the

issue. Further, in Dalia v. United States, n244 the Supreme Court explicitly

held that a separate warrant is not required for an entry to install

eavesdropping equipment, although the entry must be "reasonable." n245 Yet a

good argument can be made that the Fourth Amendment requires a probable cause

finding that non-consensual entry into a home is necessary to gather criminal

evidence, whether in the communications or physical surveillance context.

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n244 441 U.S. 238 (1979).

n245 See id. at 258 (holding that "the manner in which a [surveillance] warrant

is executed is subject to later judicial review as to its reasonableness").

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Second, the Electronic Surveillance Standards n246 and Title III n247 state that

a wiretap order may not be issued unless a judge finds that normal investigative

procedures have been tried and failed, or are likely to be unsuccessful or too

dangerous. This "necessity" requirement was designed to keep electronic

surveillance a last resort, given its intrusiveness. n248 With the advent of

video surveillance, however, it is not clear how the necessity requirement

works. As currently written, the Electronic Surveillance Standards require the

police to use video surveillance (presumably with no audio capability) before

resorting to a wiretap or a bug. Yet visual surveillance can be as intrusive or

more intrusive than aural surveillance. n249

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n246 See Electronic Surveillance Standards, supra note 7, Standard 2-5.4(c)

(requiring a finding that "other investigative procedures have or had been tried

and have or had failed or reasonably appear or appeared to be unlikely to

succeed if tried or to have been or to be too dangerous").

n247 See 18 U.S.C. § 2518(3)(b) (1994) (requiring a finding that "normal

investigative procedures have been tried and failed or reasonably appear to be

unlikely to succeed if tried or to be too dangerous").

n248 As the commentary to the PROJECT indicates, the Supreme Court itself states

in Berger v. New York, 388 U.S. 41, 60 (1967), that a special showing is "more

important in eavesdropping, with its inherent dangers, than that required when

conventional procedures of search and seizure are utilized." PROJECT, supra note

7, at 140.

n249 But this is not necessarily the case, depending upon what is viewed or

heard. This is why the proposals that place greater limitations on video

surveillance are also suspect. But see Greenfield, supra note 158, 1057-77

(suggesting, inter alia, (1) that video surveillance should be authorized for

fewer types of crimes than is the case with aural surveillance, (2) that video

surveillance should be permitted only if aural surveillance first indicates

criminal activity is occurring, (3) that video surveillance should be permitted

only if the judge identifies the person to be observed (which is required for

aural surveillance only if the person is known), (4) that the court order for

video surveillance should be of shorter duration, and (5) that warrantless video

surveillance ought to be prohibited even when one of the parties consents to

it).

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A third issue of this sort concerns minimization. The current ABA standards on

aural surveillance state that the judicial order authorizing surveillance shall

contain "a directive that overhearing or recording shall be conducted in such a

way as to minimize the overhearing or recording of conversations not otherwise

subject to overhearing or recording." n250 Federal law is similar in vein, n251

although the Supreme Court's interpretation of this provision significantly

emasculates even this relatively vague prohibition. n252 Are these provisions

sufficient for accomplishing minimization of video surveillance or should they

be more detailed for both aural and video surveillance (i.e., by requiring

termination of surveillance when no one reasonably suspected of criminal

activity is being surveilled, and allowing only spot checks thereafter)?

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n250 Electronic Surveillance Standards, supra note 7, Standard 2-5.8(I).

n251 See 18 U.S.C. § 2518(5) (1994) (stating that electronic surveillance "shall

be conducted in such a way as to minimize the interception of communications not

otherwise subject to interception under this chapter").

n252 See Scott v. United States, 436 U.S. 128, 138-39 (1978) (holding that a bad

faith failure to minimize does not violate the statute because the focus should

be "on agents' actions not their motives").

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Finally, both the Electronic Surveillance Standards and federal law exempt from

regulation the interception of communications involving a party who has

consented to the interception. n253 As applied to video surveillance, on its

face this provision's requirement that the consenting party be present during

the surveillance prohibits the use of a "teddy bear camera" to observe a

babysitter while the parents are gone. Moreover, this provision requires

termination of warrantless video surveillance if the consenter leaves the room

during a transaction. At the same time, eliminating the presence requirement

might allow the owner of a house to authorize surveillance of the activities of

guests which he or she does not personally observe. Even guests have

expectations of privacy that should be considered reasonable, especially when,

for instance, they are alone in a guest room or reasonably assume the owner has

left the premises. n254

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n253 See Electronic Surveillance Standards, supra note 7, Standard 2-5.1; 18

U.S.C. § 2511(2)(c)-(d) (1994).

n254 At least one court has held that even the presence of a consenting party

during surveillance does not vitiate Fourth Amendment protection. See United

States v. Shabazz, 883 F. Supp. 422 (D. Minn. 1995) (holding that warrantless

audio and video surveillance of a suspect's room violates the Fourth Amendment

even though conducted only while a consenting informant is in the room).

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14. To What Extent Should the Public Be Involved in Authorizing Video

Surveillance of the Public?

Several members of the Task Force wondered whether involving the public in the

implementation of long-term video surveillance of public areas (and detection

device checkpoints) was necessary given the fact that politically accountable

officials are already involved in the decision. The Task Force decided that

although this latter input might be sufficient in many instances, the public

should be given the opportunity to register its views. Both from philosophical

and practical standpoints, government searches that affect large groups of

people should be mediated through the public process. n255 Involvement of the

public affected by the surveillance can act as a check on elitist

decision-making, provide useful information as to the scope of the problem,

encourage a sense of community involvement, and diminish the discomfort

associated with the surveillance by increasing understanding of its nature and

purpose.

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n255 Cf. William Stuntz, Implicit Bargains, Government Power, and the Fourth

Amendment, 44 STAN.L.REV. 553, 588-89 (1992) (arguing that cases like

Martinez-Fuerte and Sitz, which leave checkpoints to departmental discretion,

nonetheless seem to suggest that where group stops are involved "politics

provides an adequate remedy for overzealous police action; groups . . . unlike

the solitary suspect, can protect themselves from overzealous police tactics at

the polls").

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On the other hand, the Task Force rejected the suggestion that the public be

permitted to "veto" particular video surveillance. n256 Such a provision was

deemed both unworkable and unnecessary. Determining when the public had "vetoed"

surveillance would be difficult; at the same time, overwhelming public aversion

to particular cameras would presumably persuade the police department and city

council to back down without formally gauging whether a veto has taken place.

n257

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n256 See Jennifer Granholm, Video Surveillance on Public Streets: The

Constitutionality of Invisible Citizen Searches, 64 U. DET. L. REV. 687, 711

(1987).

n257 In some jurisdictions, video cameras have been removed after public outcry.

Associated Press, Spying Fears Get Cameras Removed, GAINESVILLE SUN, June 20,

1996, at 1B (reporting that five cameras being used to monitor traffic were

removed); Barbara Yaffe, Ontario Zaps Big Brother's Photo Radar, EDMONTON J.,

June 24, 1995, at C3 (reporting that citizens voted for a local politician who

promised to remove "the government eyeball on provincial roadways"). To some

extent, the hostility in these cases may have stemmed from the fact that the

cameras effectively caught speeders.

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A related issue concerns what the public should be told about proposed video

surveillance. Some members of the Task Force believed that the precise

capabilities of the cameras, including magnification and audio capability, ought

to be disclosed. Other members, echoing the arguments against periodic public

dissemination of specific physical surveillance information, n258 argued for a

less revelatory approach. The Task Force ultimately concluded that the public

should be informed of the "intended location and general capability of the

camera." n259 By using the words "general capability," the standard conveys that

not every technical aspect of the camera need be disclosed to the public.

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n258 See supra text accompanying notes 232-33.

n259 See Standard 2-6.3(b)(ii)(A), infra Appendix.

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E. Tracking Devices

15. When Is Probable Cause Required for Tracking?

Legal regulation of tracking devices is derived largely from two Supreme Court

cases briefly described earlier. n260 In United States v. Knotts, n261 the

Supreme Court held that using a beeper to track a car through public streets is

not a search under the Fourth Amendment. According to the Court, it is not

reasonable to expect privacy with respect to one's route or destination when

traveling on the roadways. n262 In contrast, in United States v. Karo, n263 the

Court held that the use of a beeper to locate an item inside a particular house

is a search, and that judicial authorization for such a search is required.

However, the warrant need not state with particularity the place to be

"searched" by the beeper when, as will usually be the case, that place is

unknown. n264 Further, the Court left open whether reasonable suspicion (as

opposed to probable cause) is sufficient to authorize the warrant. n265

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n260 See supra text accompanying notes 26-29. Title III mentions tracking

devices, but does not seriously regulate them, merely providing that "if a court

is empowered to issue a warrant or other order for the installation of a mobile

tracking device, such order may authorize the use of that device within the

jurisdiction of the court, and outside that jurisdiction if the device is

installed in that jurisdiction." 18 U.S.C. § 3117(a) (Supp. 1996). This

provision allows beepers authorized in one jurisdiction to be used in other

jurisdictions.

n261 460 U.S. 276 (1983).

n262 See id. at 282.

n263 468 U.S. 705 (1984).

n264 See id. at 718.

n265 See id. at 718 n.5.

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Despite objections from law enforcement organizations, the Task Force opted for

the probable cause standard whenever a tracking device is used to locate an item

or person within a private location. n266 The intimation of Karo

notwithstanding, the Court has firmly stated in other contexts that a Fourth

Amendment search outside of the weapon frisk and "special needs" scenarios

requires probable cause. n267 In this situation, the tracking device functions

like a device that sees through walls, because it allows the police to determine

precisely where an item is and, by inference, where the person who carried the

item is. The Task Force concluded that such an intrusion necessitates

justification at the probable cause level.

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n266 Note that the word "location" is used in the standard, rather than the word

"place." As defined in Standard 2-6.2(f), a private place is one which, if

entered physically, would be entitled to a constitutionally protected reasonable

expectation of privacy. It is possible that various locations within such a

place are not protected by the Fourth Amendment when viewed from the outside,

without a physical intrusion. Indeed, this possibility is recognized in Karo,

when the Court states that the use of a beeper to see a container is the

equivalent of an entry only if the government "employs an electronic device to

obtain information that it could not have obtained by observation from outside

the curtilage of the house." 468 U.S. at 715.

n267 Whereas a frisk for weapons only requires reasonable suspicion, see Terry

v. Ohio, 392 U.S. 1, 20 (1968), and a special needs search (e.g., an

administrative or regulatory search) need only be "reasonable" under the

circumstances, see New Jersey v. T.L.O., 469 U.S. 325 (1985) (search of

student's purse), a typical search requires probable cause. See, e.g., Arizona

v. Hicks, 480 U.S. 321, 328-29 (1987) (holding that probable cause is required

to view serial numbers on a stereo and specifically rejecting a reasonable

suspicion standard for "cursory" searches); Ybarra v. Illinois, 444 U.S. 85,

90-94 (1979) (holding that probable cause is required to search a person unless

there is present danger).

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Although the standard also provides that public tracking need only meet the

legitimate objective test, n268 the practical impact of this standard is that

probable cause will usually be required for long-term tracking. n269 Several

factors mitigate the burden on law enforcement in that regard, however. First,

precisely because the destinations of the device are not known, probable cause

here focuses solely on the likelihood that evidence will be discovered; as Karo

indicates, the place ultimately to be searched need not be stated with

particularity. Second, if the device is installed in an illicit item (such as a

bale of marijuana or a car that is later stolen), such probable cause will

generally readily be found because, once acquired, possession of the item is a

crime. n270 Third, paragraph (c) sets out an exigency exception to the court

order requirement, which applies whenever there is insufficient time to obtain a

warrant. Finally, under provision (b)(i), if a person agrees to be "bugged," a

consent exception to the warrant and suspicion requirements exists.

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n268 See Standard 2-6.4(b)(ii), infra Appendix. Some members of the Task Force,

echoing several commentators, contended that reasonable suspicion was the

appropriate standard in this context. They argued that public tracking infringes

privacy, the interest in anonymity, and freedom of travel, in a way that typical

naked-eye viewing does not -- it allows continuous long-term monitoring of the

particular routes traveled; the starting, stopping, and intermediate points of

the travel; and the contents of one's car or suitcase. See McAdams, supra note

232, at 311 ("because [without a beeper] the combination of these elements will

be unknown to any single person in almost every case, the driver's privacy

remains secure"); Wayne R. LaFave, Nine Key Decisions Expand Authority to Search

and Seize, 69 A.B.A. J. 1740, 1740 (1983) (noting that in cases where there is

no surveillance, "only an army of bystanders, conveniently strung out on the

route and who not only 'wanted to look' but also wanted to pass on what they

observed to the next in line" would truly invade the driver's privacy interest

and expectations). The Task Force also noted that this type of physical

surveillance is more intrusive than other types of covert surveillance of public

activity (e.g., using video cameras, telescopic, or illumination devices); the

latter types of surveillance are usually relatively brief and in any event focus

on one particular area.

n269 See supra text accompanying notes 165-67.

n270 Cf. CLIFFORD S. FISHMAN & ANNE T. MCKENNA, WIRETAPPING & EAVESDROPPING §

28.10 (2d ed. 1995) (noting that tracking devices placed in packages mailed from

overseas containing contraband require no warrant).

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16. Duration of the Court Order

Under Title III, a wiretap order is valid for thirty days. n271 An early version

of the standards set this time limit on tracking orders as well. n272 However,

many knowledgeable members of the Task Force claimed that such a limitation on

the use of beepers and other tracking devices would be impractical in this

context. For instance, in an effort to ferret out the identity and location of

as many members of a drug ring as possible, tracking often might continue over

months or even years. Thirty days was therefore seen as unreasonably short.

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n271 See 18 U.S.C. § 2518(5) (1994).

n272 See Standard 2-6.4(c) (draft of Feb. 10, 1997) (on file with the Harvard

Journal of Law and Technology).

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Yet as several courts have recognized, n273 and as Karo itself indicates, n274

without some limitation, tracking surveillance becomes an extreme intrusion,

potentially amounting to weeks of surveillance apparently justified solely by

the mere hope that useful information will be produced. The time period

ultimately chosen (sixty days) is identical to the durational limitations on

court orders for "pen registers" under Title III. n275 Because of the great

likelihood that a tracked item will end up in a private location during an

extended period, an officer contemplating using a tracking device in this

situation would be well-advised to seek a warrant, with its attendant durational

limitation.

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n273 See, e.g., United States v. Butts, 710 F.2d 1139, 1149 (5th Cir. 1983);

United States v. Cofer, 444 F. Supp. 146, 151 (W.D. Tex. 1978); Cf. United

States v. Long, 674 F.2d 848, 852 (11th Cir. 1982) (holding that a warrant that

allows beeper use for ninety days is permissible if the beeper is only used for

seven days).

n274 According to Karo, to obtain a warrant for a tracking device the government

must identify the object into which the beeper is to be placed, explain the

circumstances justifying installation of the beeper, and state the length of

time it is required. United States v. Karo, 468 U.S. 708, 718 (1984).

n275 See 18 U.S.C. § 3123(c)(1)(Supp. 1996). A pen register records numbers

dialed on a telephone without overhearing verbal communications. Its use is not

a Fourth Amendment search. See Smith v. Maryland, 442 U.S. 735,745-46 (1979).

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F. Illumination and Telescopic Devices

17. The Confirmation Exception

Some courts have permitted the use of telescopic and illumination devices to

observe the inside of a house if an inadvertent naked-eye sighting gives police

reasonable suspicion that criminal activity is taking place and the enhanced

surveillance is necessary to confirm that suspicion. n276 This "confirmation"

exception to the usual probable cause requirement could arguably be justified by

the need to immediately confirm or dispel the suspicion of criminal activity.

Such a situation might occur, for instance, if an officer on the street sees

what looks like a drug deal taking place in a second story window and uses

binoculars or a nightscope to verify or dispel the suspicion.

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n276 See supra note 62.

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One version of Standard 2-6.5 recognized this exception if "the observation is

from a lawful vantage point, of brief duration, and focuses solely on the area

necessary to confirm reasonable suspicion acquired from that vantage point that

evidence of crime will thereby be discovered." n277 Ultimately, however, the

Task Force deleted this provision. In the usual confirmation situation, the

activity or condition observed with the enhancement device will be legitimately

observable on no suspicion (at least as far as the Fourth Amendment is

concerned) because it is not "private." For instance, using binoculars to

confirm the naked-eye sighting in the foregoing example would generally not

constitute a search, because the subjects are observable through a window. In

situations where this is not the case, the danger is that the exception will

permit intrusive surveillance on less than probable cause, in contravention of

the Fourth Amendment. For instance, under this exception, a tip providing

reasonable suspicion that gambling is currently taking place in a particular

house could be said to give the police authority to use a telescopic device to

look at documents inside the house and determine whether they are racing forms.

n278 The Task Force decided that the traditional warrant/exigent circumstances

formulation adequately balanced law enforcement and privacy interests in this

context.

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n277 See Standard 2-6.5(a)(iii) (draft of Feb. 10, 1997) (on file with the

Harvard Journal of Law and Technology).

n278 But cf. United States v. Kim, 415 F. Supp. 1252 (D. Haw. 1976) (holding

that the use of a telescope to observe illegal gambling, including reading

material, inside a high rise apartment requires probable cause).

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G. Detection Devices

18. Are Heat Waves "Abandoned"?

Because general detection devices reveal more than just contraband or weapons,

Standard 2-6.6(a) requires that their use be justified by probable cause or one

of the well-recognized exceptions to the probable cause standard. n279 Probably

the most controversial use of detection devices aimed at private places is

thermal imaging, which permits law enforcement officials to identify heat

sources within a building, and thus facilitates location of drug laboratories or

in-house marijuana farms. A majority of courts have held, and some members of

the Task Force argued, that the use of such a device to determine the heat

output of a private place is not a search, because it merely detects heat

"waste" that has been "abandoned" by the house occupant. n280

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n279 See supra note 168 and accompanying text.

n280 Some of these courts also analogize thermal imaging to the use of a dog to

detect drugs, which the Supreme Court indicated is not a search in United States

v. Place, 462 U.S. 696, 707 (1983). See, e.g., United States v. Pinson, 24 F.3d

1056, 1058 (8th Cir. 1994). However, thermal imaging is clearly not a

contraband-specific technique, and thus Place is inapposite here.

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The Task Force ultimately adopted the contrary position, persuaded by the Tenth

Circuit's initial reasoning on this issue. n281 As that court indicated, heat

waves that emanate through the walls of a house are similar to the sound waves

picked up by a microphone. n282 In both instances, it is the source of the

waves, not the "abandoned" waves, that interests the police. Further, because

even relatively primitive thermal imaging devices can resolve heat differentials

as small as one-half of a degree, n283 they have the potential for discerning a

variety of activities associated with an expectation of privacy.

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n281 See United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995), vacated, 83

F.3d 1247 (10th Cir. 1996). On rehearing en banc, the court held that there was

probable cause for the warrant that eventually issued, absent any consideration

of the thermal imaging, and refused to reach the issue of whether the use of the

thermal imaging constituted a search. Cusumano, 83 F.3d at 1250.

n282 See id. at 1502.

n283 See Matthew L. Zabel, A High-Tech Assault on the "Castle": Warrantless

Thermal Surveillance of Private Residences and the Fourth Amendment, 90 NW. U.

L. REV. 267, 269 (1995).

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19. Are General Detection Devices Too General?

It could be argued that the use of general detection devices should always

require probable cause (even if a recognized exception to probable cause exists)

because they often reveal more than would a traditional, legitimate physical

search. To illustrate, suppose the police have grounds to frisk a suspect or

search the immediate premises surrounding an arrestee based on a reasonable

suspicion of danger. A detection device that can "see" into containers might

easily reveal more than a traditional search in these situations. n284

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n284 For example, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court

suggested that an officer can pat down the outer clothing but should generally

not reach into pockets or beneath garments unless a weapon-like item is felt.

Id. at 29-30. In practice, however, a frisk is likely to be much more intrusive.

See JONATHAN RUBINSTEIN, CITY POLICE 310-11 (1973) (describing the probing

nature of the typical frisk taught at police academies).

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Although no Task Force members took the position that the use of general

detection devices should always require probable cause, several expressed

concern about the potential for "overbroad" searches. The detection device

standard nonetheless incorporates all of the traditional exceptions to the

probable cause requirement for three reasons. n285 First, the use of a detection

device permits the officer to remain a safer distance from the suspect. Second,

it avoids the need for highly intrusive placement of hands over the suspect's

entire body. Third, it identifies weapons and other items with greater certainty

and locates them with greater precision. Thus, post-frisk searches into clothing

will be fewer in number and more limited in scope. Similarly, in home entry

situations, the use of detection devices might dissipate the fear of danger, so

that "no-knock" entries will become unnecessary. In protective sweep situations,

detection devices will give the officer a more definite reading concerning

others on the premises and will decrease the chances of a dangerous surprise

confrontation.

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n285 See Standard 2-6.6(a)(ii)-(iii), infra Appendix.

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Nonetheless, it remains possible that the use of general detection devices in

these situations could disclose more private information than the typical search

or frisk, especially when the devices supply images rather than simply detect

characteristics of items. In recognition of this fact, the Standards Committee

added the provision that procedures should be adopted "to ensure that the

capabilities of any device used conform as closely as possible to the authorized

objective or objectives of the surveillance." n286 This provision means that if

the police must use a general detection device, they should use one that will

achieve their objective with as little revelation of other material as possible.

n287

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n286 See Standard 2-6.6(d)(iii), infra Appendix.

n287 See supra text accompanying note 178. For an argument against the approach

endorsed by the standards and in favor of a reasonable suspicion requirement for

use of detection devices in non-checkpoint situations, see Harris, supra note

119.

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20. Should Specific Devices Be Immune from Regulation?

Conversely, the issue of whether there should be any limitations on contraband-

or weapon-specific devices was also debated. Some members of the Task Force felt

that police should be able to aim a device that detects only weapons at anyone

they choose, based on the intimation in United States v. Place n288 that if a

device detects only contraband its use entails no search because it discovers

nothing of private significance. n289 The Task Force ultimately rejected this

stance because of the fact that in many states a weapon is not contraband. n290

Instead the Task Force distinguished between weapon-specific and

contraband-specific devices, to allow the use of the former whenever police may

validly look for weapons (e.g., in frisk situations) but to prevent their

random, suspicionless use except when weapons are in fact contraband (as in

airports or in jurisdictions that make carrying a concealed weapon a crime).

n291

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n288 462 U.S. 696 (1983).

n289 See id. at 707.

n290 See supra note 141 and accompanying text.

n291 See Standard 2-6.6(b)-(c), infra Appendix.

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A related argument, made by a sizeable segment of the Task Force, was that if a

device is truly contraband-specific its use should never require justification.

The case for this position is especially strong if the device is deployed

surreptitiously and relies on technology that causes no physical or other harm.

However, the group ultimately decided that when surveillance is of the home the

use of such a device generally should require probable cause. n292 The Task

Force concluded that at least one place of ultimate repose should be maintained,

sacrosanct from suspicionless invasion regardless of the precision that

technology affords. n293 Some members may also have been influenced by the

reality that devices that can see through walls are unlikely to detect only

contraband and that, even if they did, they could easily be used in a

discriminatory fashion that would be particularly repugnant when aimed at the

home.

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n292 See Standard 2-6.6(a)-(b), infra Appendix.

n293 Cf. Michael Adler, Cyberspace, General Searches, and Digital Contraband:

The Fourth Amendment and the Net-Wide Search, 105 YALE L.J. 1093, 1120 (1996)

(arguing against suspicionless "surgical" searches of computers designed to

obtain only information about illegal activity on the ground that "the values of

one's home and office as a psychological refuge and as a source of power

independent of the government represent a pair of interests protected by the

property-model of the Fourth Amendment").

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21. Fixed Checkpoints and Compelling Government Interests

The Supreme Court has upheld the use of checkpoints to address significant crime

problems like illegal immigration n294 and drunk driving. n295 This fact,

combined with the relatively nonintrusive nature of detection devices (i.e., the

fact that they allow police to avoid physical touching), led several members of

the Task Force to argue that fixed checkpoints using detection devices should be

permissible upon a relatively meager showing of need. So, for example, if a

neighborhood is experiencing a surge in violent crime, police should be able to

set up detection device checkpoints to detect and deter the importation of

weapons into the neighborhood.

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n294 See United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

n295 See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).

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While not fully addressing the propriety of such usage, the language adopted by

the Task Force clearly imposes more stringent limitations on checkpoints than

does Supreme Court case law. Not only does Standard 2-6.6(a)(iv) require the

involvement of politically accountable officials (a requirement arguably

dictated by the Court's decisions), n296 it also requires that the public

affected by the checkpoint be involved in the decision (which is clearly not

mandated by Court rulings). Additionally the standard requires a finding that

the checkpoint serve "a compelling government interest that no contraband pass

by that checkpoint" or "a compelling government interest that no weapons pass by

that checkpoint into a place where the presence of weapons would be

extraordinarily hazardous." n297 Use of the word "compelling" in these

provisions conveys a requirement that the checkpoint be the least intrusive,

effective way of achieving a government aim of great magnitude, as with

checkpoints at prisons, borders, court buildings, and airports. The Task Force

concluded that such language was necessary because checkpoints usually involve a

seizure of some sort, often of large numbers of people, and because aiming a

detection device at individuals is still likely to be perceived as intrusive,

especially when its necessity is not clear.

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n296 See supra note 221.

n297 Standard 2-6.6(a)(iv), infra Appendix (emphasis added). Standard

2-6.6(a)(iv)(C) lays out somewhat different requirements for temporary

checkpoints. See supra text accompanying note 169.

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Returning to the neighborhood weapon detection checkpoint scenario, establishing

such checkpoints on public streets would seldom be permissible under this

standard, even taking into account the fact that the use of a general detection

device would facilitate the checkpoint's purpose by less intrusive and

embarrassing means than conventionally used. The practice of subjecting everyone

seeking to enter a particular street or residential area to a contraband check

is repugnant for several reasons. First, unlike the four contexts mentioned in

the previous paragraph -- where checkpoints do not stigmatize anyone because the

practices have been so long accepted and do not discriminate between different

segments of society -- checkpoints on public roads could taint both the area

sealed off and those who enter it. Second, such checkpoints would hamper the

freedom to travel, which is not an issue in the context of prisons and public

buildings, and which already occurs at airports and at the border given the need

for documentation checks. Third, the use of such checkpoints could create an

atmosphere of oppression, precisely because it could be equated with prison,

border, and airport situations.

V. CONCLUSION

As the name implies, the American Bar Association's Tentative Draft Standards

Concerning Technologically-Assisted Physical Surveillance is a work in progress.

Comments on the foregoing material are encouraged. Final approval by the ABA

hierarchy is still some time away, n298 so feedback could have an impact.

Indeed, it is anticipated that the content of at least some of the standards

will change prior to their submission to the House of Delegates.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n298 As noted earlier, supra note 14, the review process leading to ABA House of

Delegates approval is multi-layered, including two "readings" by the Criminal

Justice Section Council. The first reading will take place in August, 1997. A

second reading must take place before the standards can be forwarded to the

House of Delegates.

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At the same time, if it has done nothing else, the work of the Task Force on

Technology and Law Enforcement has persuasively demonstrated that some

regulatory structure governing the use of physical surveillance technology is

necessary. This work provides a model for future attempts to establish

guidelines for other types of surveillance, and for search and seizure

regulation generally.

APPENDIX:

ABA TASK FORCE ON TECHNOLOGY AND LAW ENFORCEMENT

TENTATIVE DRAFT STANDARDS CONCERNING TECHNOLOGICALLY-ASSISTED PHYSICAL

SURVEILLANCE

As revised after meeting with Criminal Justice Standards Committee February 24,

1997

Standard 2-6.1. General Principles

(a) Need for Surveillance. Technologically-assisted physical surveillance can

be an important law enforcement tool. It can facilitate the detection,

investigation, prevention and deterrence of crime, the safety of officers and

citizens, the apprehension and prosecution of criminals, and the protection of

the innocent.

(b) Need for Regulation. Law enforcement use of technologically-assisted

physical surveillance can also diminish privacy, freedom of speech,

association and travel, and the openness of society. It thus may need to be

regulated.

(c) Factors Relevant to Regulating Use of Surveillance. Whether

technologically-assisted physical surveillance should be regulated and, if so,

to what extent should be determined by the following factors:

(i) the law enforcement interests implicated by the surveillance, including:

(A) the nature of the law enforcement objective or objectives sought to be

achieved;

(B) the extent to which the surveillance will achieve the law enforcement

objective or objectives; and

(C) the nature and extent of the crime involved;

(ii) the extent to which the surveillance technique invades privacy, which

should include consideration of:

(A) the nature of the place, activity, condition or location to be

surveilled;

(B) the care that has been taken to enhance the privacy of such place,

activity, condition, or location;

(C) the lawfulness of the vantage point, including whether either the

surveillance or installation of surveillance equipment requires a physical

intrusion;

(D) the availability and sophistication of the surveillance technology;

(E) the extent to which the surveillance technology enhances the law

enforcement officer's natural senses;

(F) the extent to which the surveillance of subjects is minimized in time

and space;

(G) the extent to which the surveillance of non-subjects is likewise

minimized; and

(H) whether the surveillance is covert or overt;

(iii) the extent to which the surveillance diminishes or enhances the

exercise of First Amendment freedoms and related values; and

(iv) the extent to which the surveillance technique is less intrusive than

other available effective and efficient alternatives.

(d) Implementation of the Surveillance. Officers conducting regulated

technologically-assisted physical surveillance should be governed by the

following considerations:

(i) The subjects of the surveillance should not be selected in an arbitrary

or discriminatory manner.

(ii) The scope of the surveillance should be limited to its authorized

objectives and be terminated when those objectives are achieved.

(iii) The particular surveillance technique should be capable of doing what

it purports to do and be used solely by officers trained in its use.

(iv) When a particular surveillance device makes use of more than one

regulated technology and the technologies are governed by differing rules,

the more restrictive rules should apply.

(v) Reasonable notice of the surveillance should be given at an appropriate

time and in an effective manner.

(vi) Disclosure and use by law enforcement officers of information obtained

by the surveillance should be permitted only for designated lawful purposes.

(vii) Protocols should be developed for the maintenance and disposition of

surveillance records not required to be maintained by law.

(e) Rule-making and Decision-making Entities. A variety of entities, including

the courts, legislatures, executive officials, prosecutors, law enforcement

agencies, and the public, have a responsibility in assessing how best to

regulate the use of technologically-assisted physical surveillance. The role

that each should play in formulating, monitoring and enforcing regulatory

requirements depends on such factors as the:

(i) legal basis for the regulation;

(ii) invasiveness and urgency of the surveillance;

(iii) need for deference to expertise in law enforcement;

(iv) extent to which local conditions vary;

(v) value of sharing decisionmaking; and

(vi) number of people and size of the geographic area affected by the

surveillance.

(f) Accountability and Control. Government officials should be held

accountable for use of regulated technologically-assisted physical

surveillance technology by means of:

(i) administrative rules which ensure that the information necessary for

such accountability is maintained;

(ii) in addition to any exclusionary sanction mandated by the Fourth

Amendment or legislation, appropriate administrative sanctions when rules

promulgated pursuant to Standard 2-6.1(g) regarding use of

technologically-assisted physical surveillance are violated;

(iii) periodic review by law enforcement agencies of the scope and

effectiveness of technologically-assisted physical surveillance; and

(iv) public dissemination of information about the general type or types of

surveillance being used and the frequency of their use.

(g) Written Guidance to Law Enforcement Officers. Each law enforcement agency

should develop written instructions regarding resort to regulated

technologically-assisted physical surveillance and should mandate that

officers of that agency comply with those instructions. These instructions

should include:

(i) the requirements as to specific types of surveillance, as set out in

Standards 2-6.3 through 2-6.6;

(ii) the rules developed by other agencies pursuant to Standard 2-6.1(e);

and

(iii) such other rules as are necessary to implement these general

principles in specific contexts.

Standard 2-6.2. Definitions

The following definitions apply to Standards 2-6.3 through 2-6.6.

(a) Covert surveillance. Surveillance intended to be concealed from any

subject of the surveillance.

(b) Detection devices. Devices used to detect the presence of a particular

object (e.g., explosives, drugs, weapons, or certain chemicals) or

characteristic (e.g., shape, size, density, hardness, material, texture,

temperature, scent) that is concealed behind opaque inanimate barriers. Such a

device is of the contraband-specific type if it can only reveal the presence

of an object which it is always or virtually always criminal to possess or use

in the existing circumstances. Such a device is weapon-specific if it can only

reveal the presence of a weapon.

(c) Illumination devices. Devices that make visible details not visible to the

naked eye because of poor lighting conditions.

(d) Legitimate law enforcement objective. Detection, investigation, deterrence

or prevention of crime, protection from harm, or apprehension and prosecution

of a suspected criminal. An action by a law enforcement officer is "reasonably

likely to achieve a legitimate law enforcement objective" if there are

articulable reasons for concluding that one of these objectives may be met by

taking the action.

(e) Overt surveillance. Surveillance of which a reasonable person would be

aware.

(f) Private. An activity, condition or location is private when the place

where it occurs or exists and other relevant considerations, such as those

listed in Standard 2-6.1(c)(ii), afford it a constitutionally protected

reasonable expectation of privacy. A place is private if physical entry

therein would be an intrusion upon a constitutionally protected reasonable

expectation of privacy.

(g) Reviewing law enforcement official. A law enforcement officer other than

the person who will implement the surveillance. Such an officer may be

supervisory (e.g., a sergeant, lieutenant or commander of a district or unit),

or politically accountable (e.g., a department head or a prosecutor). A

supervisory officer should have participated in specialized training on

surveillance techniques and applicable legal guidelines.

(h) Telescopic devices. Devices that make visible details not visible to the

naked eye because of distance.

(i) Tracking devices. Devices used to track movement of persons, effects, or

vehicles such as beepers, over-the-horizon radar, and Intelligent

Transportation Systems.

(j) Video surveillance. Use of a lawfully positioned camera as a means of

viewing or recording activities or conditions other than those occurring

within the sight or immediate vicinity of a law enforcement official (or agent

thereof) who is aware of such use.

Standard 2-6.3. Video surveillance

(a) Video surveillance of a private activity or condition is permissible when

it complies with provisions applicable to electronic interception of

communications [see Standards 2- * of this Chapter], as modified for video

surveillance.

(b) Overt video surveillance for a protracted period not governed by Standard

2-6.3(a) is permissible when:

(i) a politically accountable law enforcement official or the relevant

politically accountable governmental authority concludes that it will:

(A) not view a private activity or condition; and

(B) will be reasonably likely to achieve a legitimate law enforcement

objective; and

(ii) the public to be affected by the surveillance:

(A) is notified of the intended location and general capability of the

camera; and

(B) has the opportunity, both prior to the initiation of the surveillance

and periodically during it, to express its views of the surveillance and

propose changes in its execution, through a hearing or some other

appropriate means.

(c) All video surveillance not governed by Standard 2-6.3(a) or (b) is

permissible when a supervisory law enforcement official, or the surveilling

officer when there are exigent circumstances, concludes that the surveillance:

(i) will not view a private activity or condition; and

(ii) will be reasonably likely to achieve a legitimate law enforcement

objective.

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* This provision is subject to change, depending upon the Task Force's proposals

concerning communications surveillance.

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Standard 2-6.4. Tracking Devices

(a) Installation of a tracking device other than as part of a systemwide

program authorized by the legislature is permissible:

(i) if installation involves entering a private place without consent, only

when there is probable cause to believe that:

(A) the object to be tracked is at the location to be entered; and

(B) subsequent monitoring of the device will reveal evidence of crime; and

(ii) in all other cases, when subsequent monitoring of the device is

reasonably likely to achieve a legitimate law enforcement objective.

(b) Monitoring of a tracking device is permissible:

(i) to determine whether or where the device is located within a particular

private location, only when there is probable cause to believe that such

monitoring will reveal evidence of crime, provided that, if one or more of

the subjects of the monitoring consent to have the tracking device accompany

their persons, the monitoring need only be reasonably likely to achieve a

legitimate law enforcement objective; and

(ii) in all other cases, only so long as there continues to be a reasonable

likelihood that such monitoring will achieve a legitimate law enforcement

objective,

(c) Installation pursuant to paragraph (a)(i) and nonconsensual monitoring

pursuant to paragraph (b)(i) shall be permitted only on written authorization

by a judicial officer, except when obtaining the required court order is not

feasible due to exigent circumstances, in which case an order should be sought

as soon as practicable. The court order should authorize surveillance for as

long as necessary to achieve the authorized objective(s) of the surveillance,

limited to a maximum of 60 days absent articulable facts demonstrating a need

for longer surveillance. Extensions of 60 days should be permitted on

reauthorization by a judge under the appropriate standard.

Standard 2-6.5. Illumination and Telescopic Devices

(a) Use of an illumination or telescopic device to observe a private activity

or condition is permissible when:

(i) a judicial officer has issued a warrant on probable cause to believe

evidence of crime will thereby be discovered; or

(ii) obtaining a warrant is not feasible due to exigent circumstances, and

the surveilling officer has probable cause to believe evidence of crime will

thereby be discovered.

(b) Use of an illumination or telescopic device that is not governed by

Standard 2-6.5(a) is permissible when:

(i) the use is overt and not prolonged with respect to any given area; or

(ii) it is reasonably likely to achieve a legitimate law enforcement

objective.

Standard 2-6.6. Detection Devices

(a) Use of a detection device to search a private place (whether associated

with a person, premises, or effect) is permissible when:

(i) the search is on probable cause:

(A) pursuant to a search warrant issued by a judicial officer; or

(B) without a search warrant when obtaining such a warrant:

(1) would not be feasible due to exigent circumstances; or

(2) is unnecessary because of the lesser expectation of privacy associated

with the private place; or

(ii) the device is directed only at places the police are authorized to

search:

(A) incident to a lawful custodial arrest;

(B) with the consent of a person with real or apparent authority to give

such consent; or

(C) pursuant to a lawful inventory; or

(iii) upon grounds for such protective action, the device is directed only

at places the police are authorized to:

(A) subject to a protective frisk;

(B) otherwise enter without notice in the interest of self-protection; or

(C) subject to a protective sweep; or

(iv) the device is directed only at persons or effects passing a checkpoint,

if:

(A) the checkpoint is fixed and has been established to serve a compelling

government interest that no contraband pass by that checkpoint, as

determined by an appropriate politically accountable law enforcement

official or governmental authority;

(B) the checkpoint is fixed and has been established to serve a compelling

government interest that no weapons pass by that checkpoint into a place

where the presence of weapons would be extraordinarily hazardous, as

determined by an appropriate politically accountable law enforcement

official or governmental authority; or

(C) the checkpoint is temporary and has been established in response to a

substantial risk of death or serious bodily harm, upon a finding made of

record by a supervisory law enforcement official that:

(1) there is a reasonable suspicion that the instrumentality threatening

such harm or the person or persons threatened will thereby be discovered;

and

(2) the anticipated size of the group of persons involved is reasonable in

light of the purpose for which the device is to be used; and

(D) with respect to the checkpoints in (A) and (B), the public to be

affected by the checkpoint:

(1) is notified of the intended location of the checkpoint; and

(2) has the opportunity, both prior to the initiation of the surveillance

and periodically during it, to express its views about the checkpoint and

propose changes in its execution, through a hearing or some other

appropriate means.

(b) Use of a contraband-specific detection device to search a private place in

circumstances other than those authorized by Standard 2-6.6(a) is permissible

if it does not involve search of a place of residence and:

(i) such use is reasonably likely to achieve a legitimate law enforcement

objective; and

(ii) if a seizure is made to facilitate such use, there are grounds for the

seizure.

(c) Use of a weapon-specific detection device is permissible in the

circumstances specified in Standard 2-6.6(a)(iii), even absent any

individualized suspicion of danger that otherwise would be required.

(d) Law enforcement agencies using detection devices should adopt procedures:

(i) to avoid disclosure of gender-specific anatomical features to officers

of the opposite gender; and

(ii) to ensure that no physical harm is caused by such devices; and

(iii) to ensure that the capabilities of any device used conform as closely

as possible to the authorized objective or objectives of the surveillance.

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