Technology Law & Policy Clinic Partners with ACLU on Amicus Brief Against Long-Term Police “Pole Camera” Surveillance

This post is part of a series exploring the Clinic’s work during the 2020-21 year

Student attorneys in NYU’s Technology Law & Policy (TLP) Clinic partnered with the American Civil Liberties Union (ACLU), the ACLU of Colorado, and the Electronic Frontier Foundation to prepare an amicus brief filed in January 2021 in the Colorado Supreme Court in the case Colorado v. Tafoya. The brief argues that warrantless, long-term “pole camera” surveillance violates constitutional privacy protections and clashes with basic notions of privacy.

In the Tafoya case, law enforcement used a camera affixed to a utility pole across the street from a suspect’s home (a so-called “pole camera”) to record and stream all activity around his residence for roughly three months straight—all without a warrant.

Law enforcement around the country frequently engages in this practice—continuous and long-term surveillance via warrantless pole cameras. Anyone who lives in the vicinity of a utility pole or any other object to which a camera can be affixed is at risk of becoming the target of invisible long-term government surveillance, without any regulation from the courts. Technological changes heighten the risk, as cameras get smaller and harder to detect and storage capacities grow.

As the amicus brief explains, long-term pole camera surveillance violates the Fourth Amendment, which protects people’s reasonable expectations of privacy. It also violates Colorado’s state constitutional equivalent search provision, which provides even more stringent privacy protections than the U.S. Constitution.

TLP student attorneys Isabella Caito (’22), Arthi Naini (’22), and Eli Watkins (’22) worked on the brief during the Fall 2020 semester, under the supervision of TLP Clinical Professor Brett Max Kaufman, Senior Staff Attorney at the ACLU and Adjunct Professor in the TLP Clinic, and alongside Nathan Freed Wessler, the Deputy Director of the ACLU’s Speech, Privacy & Technology Project and the attorney that argued the ACLU’s position before the Colorado Supreme Court. As of writing, the Colorado high court has not yet issued its ruling.