Privacy in Public Places
- September 14, 2015
- Clayton Rice, Q.C.
Is there a right to privacy in public places? And, if so, what language do we use to describe it and its boundaries? I have concluded that we have a reasonable expectation of privacy in public places that has emerged in the language of the leading cases in the Supreme Court of Canada and the Supreme Court of the United States.
The story begins with US v Knotts, 460 US 276 (1983) where the police believed that one of the defendants was buying chloroform for the production of methamphetamine. They made a deal with the manufacturer to put a radio transmitting beeper in a drum of chloroform the next time one was purchased. The police followed the vehicle operated by Petschen, one of the defendants, after the purchase and used the beeper to locate a cabin where the vehicle stopped. The cabin was owned by Knotts. After visual surveillance of the cabin, the police obtained a search warrant and found a drug production laboratory. In holding that the warrantless use of the beeper did not violate the Fourth Amendment, Justice William H. Rehnquist stated the following, at pp. 281-2:
“The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile: “One has a lesser expectation of privacy in a motor vehicle because its function is transportation, and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U.S. 583, 417 U.S. 590 (1974) (plurality opinion). See also Rakas v. Illinois, 439 U.S. 128, 439 U.S. 153-154, and n. 2 (1978) (Powell, J., concurring); South Dakota v. Opperman, 428 U.S. 364, 428 U.S. 368 (1976).
A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen travelled over the public streets, he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.”
Justice Rehnquist left open, at pp. 283-4, the question whether the result would be different in a situation involving “twenty-four hour surveillance of any citizen…without judicial knowledge or supervision”. That question came before the Supreme Court of Canada ten years later in R v Wise,  1 SCR 527 where the Knotts rule was rejected in favour of a more expansive construction of the right to privacy.
In Wise, the police also installed a beeper in the defendant’s car without a warrant. The electronic surveillance continued twenty-four hours a day for approximately four months. The court was unanimous that the surveillance constituted a search in breach of s. 8 of the Charter of Rights but disagreed on the extent of the expectation of privacy in motor vehicles and whether the evidence should be suppressed. The test for exclusion of evidence in Canadian law is not the “fruit of the poisoned tree” doctrine but a balancing test under s. 24(2) of the Charter where the ultimate question is whether the admission of the evidence would bring the administration of justice into disrepute.
Justice Gerald La Forest, in dissent, held that “the path proposed by the Knotts decision” was inconsistent with the principles set out in the court’s leading opinions in R v Duarte,  1 SCR 30 and R v Wong,  3 SCR 36. It is here, where Justice La Forest hit the heart of his analysis, that he affirmed the language of privacy, at paras. 80-1:
“…Duarte and Wong both underlined the potential of uncontrolled electronic surveillance to annihilate privacy, and its consequent danger to individual autonomy and the organization of a free society. They emphasized that these sorts of threats to privacy ‘are of a different order of magnitude’ and ‘involve different risks to the individual and the body politic’; see Duarte, at p. 48. The crucial point is that there is a qualitative difference between the risk one takes that one’s movements in a car will be observed by others, including the authorities, and the risk that one’s vehicle will be monitored by a device that will follow its every movement. This is the proposition that lies at the heart of the Wong decision. It is as if one had an agent of the state in the car constantly reporting one’s location. The question that must be asked is ‘whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question’; see Wong, at pp. 45-46. I think that in this case that question must be answered in the affirmative.
The decisions in Wong and Duarte are predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will see us or overhear our words, and the much more pernicious risk that they will be electronically monitored at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between courting the risk that our activities may be observed by other persons and the risk that agents of the state, in the absence of prior authorization, will track our every move. In both instances, it is constitutionally unacceptable that the state should be allowed to rest a justification for the unauthorized electronic surveillance of a given person on the mere fact that that person had been in a situation where he could be the object of scrutiny on the part of private individuals. To sanction state intrusions on this basis is to blind oneself to the fact that the threat to privacy inherent in courting the ordinary observations of other members of society pales by comparison with the threat to privacy posed by allowing the state to electronically monitor our every movement. Section 8 of the Charter exists to protect privacy and not solitude.”
Justice La Forest, at paras. 71 and 83, specifically approved of the rationale stated by Professor Malvin Gutterman in a law review article titled A Formulation of the Value and Means of the Fourth Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse L Rev 647 (1988) at pp. 706-7:
“In a variety of public contexts, we may expect to be casually observed, but may justifiably be outraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance, but seek to merge into the ‘situational landscape.’ The ability to move about freely without constant supervision by the government is an important source of individual liberty that must be addressed. A fear of systemic observation, even in public places, destroys this sense of freedom. Justice Douglas recognized the importance of this privacy value in a democratic society, commenting that free movement is as dangerous to a tyrant as free expression of ideas or the right of assembly and is, therefore, controlled in most countries.
Privacy includes control over disclosure of our movements, or else it compels us to live the life of a hermit. Living in society, of necessity, requires the revealing of private information for select purposes without sacrificing the privacy of our daily activities. To limit this freedom a stronger justification than a mechanical incantation of ‘public exposure’ is required. The Court must be reminded of the powerfully eloquent dissent of Justice Brennan that electronic aids add a whole new dimension to surveillance; ‘[t]hey make it more penetrating, more indiscriminate, more fully obnoxious to a free society. Electronic surveillance, in fact, makes the police omniscient, and police omniscience is one of the most effective tools of tyranny’.”
Another ten years went by when a nightclub owner named Antoine Jones came under police suspicion for drug trafficking in the District of Columbia. In 2004, the police obtained a warrant for the installation of a GPS tracking device on the undercarriage of Jones’ motor vehicle. But the electronic surveillance then exceeded the warrant’s scope in both geography and length of time. Although the Supreme Court of the United States was unanimous in US v Jones, 565 US__(2012) that this constituted a search under the Fourth Amendment, the court was deeply divided as to the reasons underlying that conclusion.
Justice Antonin Scalia, writing for a 5-4 majority, concluded that the government’s installation of the GPS device was a physical intrusion, or trespass, into a constitutionally protected area in order to obtain information and thus a search under the Fourth Amendment. Justice Scalia said this, slip. op., at p. 4:
“The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted…The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous…Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.”
Justice Scalia conceded, slip. op., at p. 5, that in Katz v US, 389 US 347 (1967) the court held that “the Fourth Amendment protects people, not places” and found a violation in attachment of an eavesdropping device to a public telephone booth. However, he emphasized, slip op., at pp. 10-11, that the guarantee against unreasonable searches must provide at a minimum the degree of protection it afforded when it was adopted which does not necessarily exclude Katz’s unreasonable-expectation-of-privacy test. He concluded that: “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”
Justice Samuel A. Alito, writing the four member concurring opinion, slip op., at p. 6, emphasized that the common law property based analysis of a search did not apply to the electronic situation in this case. As the court later put it (after Katz) in US v. Karo, 468 US 705 (1984) at p. 713: “[A]n actual trespass is neither necessary nor sufficient to establish a constitutional violation.” Justice Alito went on, slip op., at pp. 11-2, to describe technological devices that were in their early development when Justice La Forest of the Supreme Court of Canada wrote his dissent in Wise:
“Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience…Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users – and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States…[N]ew ‘smart phones’, which are equipped with a GPS device, permit more precise tracking.”
Justice Alito concluded that the continuous monitoring in Jones for 28 days violated a reasonable expectation of privacy. However, with respect to monitoring for a brief period, he added at slip op., p. 13, that “short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable” based on Knotts.
Justice Sonia Sotomayer wrote a separate concurring opinion where she concluded, slip op., at p. 2, that “Katz’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it.” She agreed with Justice Alito’s conclusion about long term surveillance, based on the expectation of privacy reasoning, but disagreed with the constitutionality of warrantless short-term GPS surveillance. She observed, slip op., at p. 3, that even short term trips can reveal a wealth of intimate detail about a person’s familial, political, professional, religious, and sexual associations such as “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” (This point had been made in the amicus curiae Brief of Center for Democracy & Technology and Electronic Frontier Fioundation in Support of Jones, at p. 20)
In the penultimate paragraph of her opinion, Justice Sotomayer touched on the electronic disclosure of information to third parties such as Internet service providers where she made this prophetic observation, slip op., at pp. 5-6: “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
Enter, then, the Internet and the landmark opinion of the Supreme Court of Canada in R v Spencer,  2 SCR 212 where Justice Thomas Cromwell, writing for a unanimous court, held that there is a reasonable expectation of privacy in the subscriber information provided to an Internet service provider. I will focus on three aspects of the ruling.
First, Justice Cromwell specifically adopted, at para. 44, the reasoning of Justice La Forest, in dissent, in Wise where he agreed with Professor Gutterman that in public acts we do not expect to be subject to extensive surveillance but seek to merge into the situational landscape. Justice La Forest’s language of privacy in Wise is therefore now incorporated in Charter s. 8 doctrine in Canada.
Second, Justice Cromwell affirmed previous Supreme Court jurisprudence, at para. 40, that the understanding of informational privacy as control “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit”. Even though information may be communicated, such as to an Internet service provider, and cannot be thought of as secret, “situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.” (See: R v Dyment,  2 SCR 417)
Third, and related to the first two points, is the concept of privacy as anonymity. Justice Cromwell elaborated on anonymity, at paras. 42- 47, where he observed that: “The notion of privacy as anonymity is not novel. It appears in a wide array of contexts ranging from anonymous surveys to the protection of police informant identities…[T]he information is communicated on the basis that it will not be identified with the person providing it…Recognizing that anonymity is one conception of informational privacy seems to me to be particularly important in the context of Internet usage. One form of anonymity…is what is claimed by an individual who wants to present ideas publicly but does not want to be identified as their author.”
The concept of privacy in public places was described in the following way by Ann Cavoukian, the Information and Privacy Commissioner of Ontario, in a paper titled Surveillance, Then and Now: Securing Privacy in Public Spaces (2013), at pp. 23-4:
“It is one thing to be seen in public. It is another to be tracked by the state. Public spaces facilitate a range of vital, everyday activities in a democratic society: transportation, recreation, shopping, socializing, and artistic performance. ‘They are places in which political movements…make themselves visible’ and in which the individual is able to merge into the ‘situational landscape.’ Similar things can be said about tracking people in open fields and woods – spaces which facilitate solitary walks, intimacy and romance, as well as group worship. Warrantless surveillance that facilitates the sustained tracking or monitoring of people engaging in everyday activities in public and open spaces is, in Supreme Court Justice La Forest’s words, ‘an unspeakable prospect in a free and open society such as ours.’
Unthinkable as it may be, the prospect of close and continuous surveillance is no longer simply the stuff of science fiction. Increasingly sophisticated surveillance technologies are being deployed by the state. Miniature surveillance drones, unseen digital recognition systems, and surreptitious geolocational monitoring are readily available, making long-term surveillance relatively ‘easy and cheap.’ Unfettered law enforcement access to surveillance technologies that are capable of facilitating indiscriminate monitoring risks intruding upon our right to a reasonable expectation of privacy, particularly where that monitoring may be close and continuous. After all, the right to privacy is of concern, not only to accused persons, ‘but to the general…public who have every right to go about their law-abiding business without being the subject of random police searches…’ [W]e are not faced with the unpalatable and impractical choice of trying to prohibit the state from using emerging technologies altogether, but simply of imposing legal, administrative, and technical controls to ensure that their use is appropriate and accountable.”
Although Canadians and Americans have been carving out the conceptual boundaries of their respective constitutional privacy rights in the digital world, lawmakers and the judiciary continue to fall behind emerging technologies. In an article titled AI surveillance camera tells you what it sees when it recognizes you posted by Naked Security on September 14, 2015, Lisa Vaas reported that Ross Goodwin and Gene Han, two masters students at New York University, have created a surveillance camera that reads aloud in real time its interpretation of what it sees when it captures a facial image. “We wanted to create an entity with its own sense of social awareness, its own eyes, ” Mr. Goodwin said, “and an ability to communicate with humans, albeit with some glitchiness that underscores the limitations of the current technology.”