Amicus Curiae Brief — Daphne Moore, Petitioner v. United States

Supreme Court briefDec 21, 2022

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No. 22-481

IN THE

Supreme Court of the United States

DAPHNE MOORE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the 1st Circuit

BRIEF OF AMICI CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS

AND 13 MEDIA ORGANIZATIONS IN

SUPPORT OF PETITIONER

Bruce D. Brown

Counsel of Record

Katie Townsend

Gabe Rottman

Grayson Clary

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW

Suite 1020

Washington, D.C. 20005

bruce.brown@rcfp.org

(202) 795-9300

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ................................................................. 4

Targeted, persistent camera surveillance

threatens First Amendment freedoms,

including the freedom to gather the news. .... 4

a. Confidential in-person contacts between

reporters and sources play an essential

role in newsgathering. ................................ 5

b. Persistent camera surveillance has been

misused in infamous past efforts to

identify reporters’ sources. ......................... 7

II. The Fourth Amendment requires a warrant

before investigators engage in targeted,

persistent camera surveillance that would

chill First Amendment rights. ...................... 10

a. Fourth Amendment safeguards are of

heightened importance where First

Amendment rights are at risk. ................ 11

b. Under Carpenter, the Fourth Amendment

requires a warrant to intrude on the

associational rights threatened by location

surveillance. .............................................. 13

CONCLUSION............................................................ 18

TABLE OF AUTHORITIES

Cases

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ................................. 11, 13, 15

Boyd v. United States,

116 U.S. 616 (1886) ................................................. 17

Branzburg v. Hayes,

408 U.S. 665 (1972) ................................................. 10

Carpenter v. United States,

138 S. Ct. 2206 (2018) ..................................... passim

Commonwealth v. Mora,

150 N.E.3d 297 (Mass. 2020) ................................. 13

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) ........................... 11

Heller v. New York,

413 U.S. 483 (1973) ................................................. 12

Illinois v. Lidster,

540 U.S. 419 (2004) ................................................. 10

In re Facebook, Inc. Internet Tracking Litig.,

956 F.3d 589 (9th Cir. 2020) .................................. 15

Katz v. United States,

389 U.S. 347 (1967) ................................................. 14

Kyllo v. United States,

533 U.S. 27 (2001) ..................................................... 5

iii

Leaders of a Beautiful Struggle v. Baltimore Police

Dep’t,

2 F.4th 330 (4th Cir. 2021) ..................................... 17

Marcus v. Search Warrants,

367 U.S. 717 (1961) ....................................... 4, 11, 18

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ................................................. 13

NAACP v. Button,

371 U.S. 415 (1963) ................................................... 2

New York v. P.J. Video, Inc.,

475 U.S. 868 (1986) ........................................... 12, 13

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ............................................. 12

Roaden v. Kentucky,

413 U.S. 496 (1973) ................................................. 13

Sanders v. Am. Broad. Cos.,

978 P.2d 67 (Cal. 1999) ........................................... 15

Stanford v. Texas,

379 U.S. 476 (1965) ......................................... passim

Tabbaa v. Chertoff,

509 F.3d 89 (2d Cir. 2007) ...................................... 12

United States v. Di Re,

332 U.S. 581 (1948) ................................................... 4

United States v. Jones,

565 U.S. 400 (2012) ......................................... 2, 9, 14

United States v. Ramsey,

431 U.S. 606 (1977) ................................................. 12

United States v. Stevens,

559 U.S. 460 (2010) ................................................. 17

United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021)

............................................................................ 10, 17

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) ..................... 11, 18

Zerilli v. Smith,

656 F.2d 705 (D.C. Cir. 1981) .................................. 5

Zurcher v. Stanford Daily,

436 U.S. 547 (1978) ............................................. 4, 12

Constitutional Provisions

U.S. Const. amend. IV .................................................. 2

Other Authorities

Amy Mitchell et al., Pew Research Ctr., Investigative

Journalists and Digital Security (2015),

https://perma.cc/PS6S-VZZT .................................... 7

Charlie Savage, CNN Lawyers Gagged in Fight with

Justice Dept. over Reporter’s Email Data, N.Y.

Times (June 9, 2021),

https://perma.cc/8LKT-3J3V .................................... 6

Government Surveillance: U.S. Has Long History of

Watching White House Critics and Journalists,

Newsweek (June 23, 1975),

https://perma.cc/B76N-3Z6B .................................... 5

Historical Marker Installed Outside ‘Deep Throat’

Garage, ARLnow (Aug. 17, 2011),

https://perma.cc/Z63R-AYWS................................... 5

Human Rights Watch, With Liberty to Monitor All:

How Large-Scale US Surveillance Is Harming

Journalism, Law, and American Democracy (2014),

https://perma.cc/KUH6-4MVF ................................. 7

Janny Scott, Now It Can Be Told: How Neil Sheehan

Got the Pentagon Papers, N.Y. Times (Jan. 7,

2021),

https://perma.cc/NFM7-B76C .............................. 4, 6

Jennifer R. Henrichsen & Hannah Bloch-Wehba,

Reporters Comm. for Freedom of the Press,

Electronic Communications Surveillance: What

Journalists and Media Organizations Need to

Know (2017),

https://perma.cc/SW4K-EVAX ................................. 6

Karen DeYoung & Walter Pincus, CIA to Air Decades

of Its Dirty Laundry, Wash. Post (June 22, 2007),

https://perma.cc/QCY9-M2TC .................................. 9

Laura K. Donohue, The Original Fourth Amendment,

83 U. Chi. L. Rev. 1181 (2016) ............................... 16

Mark Feldstein, Poisoning the Press: Richard Nixon,

Jack Anderson, and the Rise of Washington’s

Scandal Culture (2010) ................................... 8, 9, 10

Memorandum from Howard J. Osborn, Central

Intelligence Agency, “Family Jewels” (May 16,

1973),

https://perma.cc/D5TY-AMF7 .................................. 9

National Reporting: Jack Anderson of United

Features Syndicate, The Pulitzer Prizes (1972),

https://perma.cc/B4R6-FP7T .................................... 8

Q&A: Brit Hume Recollects the Days of Being a CIA

Target, Fox News (June 29, 2007),

https://perma.cc/T4D6-E6AD ................................... 8

Timothy S. Robinson, CIA Elaborately Tracked

Columnist, Wash. Post (May 4, 1977),

https://perma.cc/J4U7-B2B2 ................................ 2, 8

INTEREST OF AMICI CURIAE1

Amici are the Reporters Committee for

Freedom of the Press, First Amendment Coalition,

Freedom of the Press Foundation, International

Documentary Association, The Media Institute,

National Newspaper Association, National Press

Photographers Association, New England First

Amendment

Coalition,

The

News

Leaders

Association, News/Media Alliance, Society of

Environmental Journalists, Society of Professional

Journalists, Student Press Law Center, and Tully

Center for Free Speech.

As news media organizations, publishers, and

organizations dedicated to protecting the First

Amendment interests of journalists, amici have a

pressing interest in ensuring that warrantless

surveillance authorities do not become an “instrument

for stifling liberty of expression.” Marcus v. Search

Warrants, 367 U.S. 717, 729 (1961). Amici therefore

write to highlight past misuses of persistent camera

surveillance to intrude on the newsgathering process,

as well as to underline the First Amendment interests

at stake in the Fourth Amendment question at bar.

Pursuant to Supreme Court Rule 37, counsel for amici

curiae state that no party’s counsel authored this brief in whole

or in part; no party or party’s counsel made a monetary

contribution intended to fund the preparation or submission of

this brief; no person other than the amici curiae, their members

or their counsel made a monetary contribution intended to fund

the preparation or submission of this brief; counsel of record for

all parties were given timely notice of the intent to file this brief;

and counsel of record for all parties have provided written

consent to the filing of the brief.

SUMMARY OF THE ARGUMENT

The history of the Fourth Amendment “is

largely a history of conflict between the Crown and the

press,” Stanford v. Texas, 379 U.S. 476, 482 (1965),

and the Constitution’s prohibition on “unreasonable

searches and seizures,” U.S. Const. amend. IV, has

served since the Founding as a vital safeguard for the

First Amendment’s guarantee of a free press. If not

for its protections, boundless and standardless

surveillance would deny the right to report the

“breathing space” that it, like other “delicate and

vulnerable” First Amendment freedoms, needs “to

survive.” NAACP v. Button, 371 U.S. 415, 433 (1963).

Against that backdrop, persistent camera

surveillance can pose, and historically has posed, an

obvious threat to the integrity of the newsgathering

process. To stake out an “observation nest” near a

constitutionally sensitive location—a newspaper

office, a home, a church—is an old trick of security

agencies hoping to identify reporters’ sources and dam

the flow of newsworthy information to the public.

Timothy S. Robinson, CIA Elaborately Tracked

Columnist,

Wash.

Post

(May

1977),

https://perma.cc/J4U7-B2B2. But the technology at

issue in this case abolishes the limits that once

ensured persistent visual monitoring was “difficult

and costly”—and thus an exceptional rather than an

everyday intrusion. Carpenter v. United States, 138

S. Ct. 2206, 2217 (2018) (quoting United States v.

Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring

in the judgment)). The contemporary pole camera

gives the government a powerful, reliable tool to open

“an intimate window into a person’s life” and

associations, id. at 2217, including confidential

reporter-source contacts on which so much

newsgathering depends.

In this case, the U.S. Court of Appeals for the

First Circuit divided evenly on the constitutionality of

that kind of unflagging surveillance, mirroring the

broader divide in the lower courts. See Pet. 3. One

three-judge concurrence (the “Barron concurrence”)

would recognize the distinctive risks posed by

targeted and persistent camera surveillance, different

in kind rather than degree from a run-of-the-mill

“security camera[]” in its capacity to expose the

privacies of life. Pet. App. 63a (quoting Carpenter, 138

S. Ct. at 2220. The other would ignore those hazards.

See Pet. App. 92a (the “Lynch concurrence”). The

division within the First Circuit underlines a clear

split over the constitutional standards that govern the

use of this technology, while showcasing continuing

confusion in the lower courts as to how the Fourth

Amendment

guards the

“familial,

political,

professional, religious, and sexual associations” the

First Amendment likewise protects. Carpenter, 138 S.

Ct. at 2217 (quoting Jones, 565 U.S. at 415

(Sotomayor, J., concurring)). Only this Court’s review

can resolve those disputes.

Amici therefore urge this Court to grant the

Petition. Under the rule that still governs in the First

Circuit,2 investigators could station a permanent,

never-blinking eye with an indefinite memory outside

any sensitive location on bare curiosity—on the offSee Pet. 9 (explaining that the Circuit’s failure to reach

a majority judgment left in place its pre-Carpenter precedent).

chance, say, of catching the next Neil Sheehan visiting

the next Daniel Ellsberg’s apartment. See Janny

Scott, Now It Can Be Told: How Neil Sheehan Got the

Pentagon Papers, N.Y. Times (Jan. 7, 2021),

https://perma.cc/NFM7-B76C. Such an “unrestricted

power of search and seizure” is not only patently

unreasonable but would also be a powerful

“instrument for stifling liberty of expression,” casting

a chilling pall on the reporter-source contacts on

which effective journalism often relies. Marcus v.

Search Warrants, 367 U.S. 717, 729 (1961). The Court

should reject that thin, dangerous construction of the

Fourth Amendment and reaffirm that its

requirements apply with “scrupulous exactitude”

when First Amendment freedoms are also at stake.

Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978)

(quoting Stanford, 379 U.S. at 485).

ARGUMENT

Targeted, persistent camera surveillance

threatens First Amendment freedoms,

including the freedom to gather news.

Experience teaches that a “too permeating

police surveillance” will predictably intrude on the

newsgathering process—exposing stories pursued,

journalistic methods employed, and the identities of

sources consulted. United States v. Di Re, 332 U.S.

581, 595 (1948). And because in-person meetings play

a crucial role in reporter-source relationships, location

tracking, in particular, has long been a tool employed

by officials hoping to investigate and ultimately chill

disclosures to the media.

See Government

Surveillance: U.S. Has Long History of Watching

White House Critics and Journalists, Newsweek (June

23, 1975), https://perma.cc/B76N-3Z6B (noting the

CIA’s track record of “follow[ing] newsmen . . . in order

to identify their sources”).

But the “more

sophisticated systems” of visual surveillance that are

now “in use or in development,” Kyllo v. United States,

533 U.S. 27, 36 (2001), have expanded investigators’

field of view dramatically. To conclude that those new

tools are entirely unregulated by the Fourth

Amendment, available for suspicionless and

indefinite deployment outside any sensitive location,

poses an obvious risk to the exercise of First

Amendment freedoms.

Confidential

in-person

contacts

between reporters and sources play

an essential role in newsgathering.

“[J]ournalists frequently depend on informants

to gather news, and confidentiality is often essential

to establishing a relationship with an informant.”

Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981).

That some of the most consequential reporting about

the functioning of government has depended on such

sources is familiar enough that a plaque

commemorates the “anonymous secure location”—a

parking garage—where Bob Woodward would meet

Mark Felt during the Washington Post’s investigation

of the Watergate scandal. Historical Marker Installed

Outside ‘Deep Throat’ Garage, ARLnow (Aug. 17,

2011), https://perma.cc/Z63R-AYWS. The reporting of

the landmark Pentagon Papers disclosures likewise

involved repeated confidential meetings between the

New York Times’s Neil Sheehan and his source,

Daniel Ellsberg, at each other’s homes. See Scott,

supra. The value of the reporting that would be lost

if journalists could not credibly guard the

confidentiality of those contacts cannot be overstated.

While in-person meetings have always played a

role

reporter-source

relationships,

those

interactions have taken on special importance in a

climate of pervasive electronic surveillance. See

generally Jennifer R. Henrichsen & Hannah BlochWehba, Reporters Comm. for Freedom of the Press,

Electronic Communications Surveillance: What

Journalists and Media Organizations Need to Know

(2017), https://perma.cc/SW4K-EVAX. In recent leak

investigations, the government has offered a vivid

reminder that the electronic trail left by journalists’

interactions with their sources is only ever a routine,

secret court order away from exposure to

investigators. See, e.g., Charlie Savage, CNN Lawyers

Gagged in Fight with Justice Dept. over Reporter’s

Email Data, N.Y. Times (June 9, 2021),

https://perma.cc/8LKT-3J3V.3 When any stray digital

breadcrumb could put a source’s identity at risk, inperson meetings provide a crucial safety valve.

As a result, as a 2015 report from the Pew

Research Center documented, “[w]hen it comes to the

Exactly because of the important First Amendment

interests at stake in reporter-source confidentiality, the

Department of Justice recently adopted regulations prohibiting

the use of “compulsory legal process for the purpose of obtaining

information from or records of members of the news media acting

within the scope of newsgathering,” with limited exceptions. 28

C.F.R. § 50.10(a)(2). While the regulations mark an important

shift in the Department’s approach, they lack the lasting force of

a federal statute and provide, of course, no protection against

investigations conducted by instruments of state governments.

specific actions journalists may or may not take to

protect their sources, the most common technique by

far . . . is to meet them in person.” Amy Mitchell et

al., Pew Research Ctr., Investigative Journalists and

Digital Security at 8–9 (2015), https://perma.cc/PS6SVZZT. And a 2014 study conducted by Human Rights

Watch likewise found that growing awareness of the

scope of government monitoring has led journalists “to

adopt elaborate steps to protect sources and

information,” up to and including “abandoning all

online communication and trying exclusively to meet

sources in person.” Human Rights Watch, With

Liberty to Monitor All: How Large-Scale US

Surveillance Is Harming Journalism, Law, and

American

Democracy

(2014),

https://perma.cc/KUH6-4MVF. As one reporter put it,

“Maybe we need to get back to going to sources’

houses.” Id. at 35. The question presented in this case

is whether that safe harbor, too, will inevitably be

eroded by an ever more expansive surveillance state.

Persistent camera surveillance has

been misused in infamous past

efforts to identify reporters’ sources.

In light of the crucial role that in-person

meetings with sources plays in the newsgathering

process, it should be no surprise that crude variations

on the surveillance at issue here have figured in past,

now-infamous leak investigations.

When a

journalist’s only option is “to go to their [source’s]

door,” With Liberty to Monitor All, supra, at 35,

officials hoping to out that source—disrupting the

flow of newsworthy information to the public—will

work to ensure that door has a camera pointed at it.

Perhaps the best-known example is the Nixon

administration’s relentless monitoring of columnist

Jack Anderson, who in 1972 was “spied on by the CIA

in a three-month, unsuccessful agency attempt to

determine the sources of his news stories.” Robinson,

supra. Anderson and his staff were, in the eyes of the

White House, too well-informed about United States

policy towards India and Pakistan, as reflected in

reporting that ultimately earned Anderson a Pulitzer

Prize. See National Reporting: Jack Anderson of

United Features Syndicate, The Pulitzer Prizes

(1972), https://perma.cc/B4R6-FP7T. The Central

Intelligence Agency therefore launched an extensive

effort to identify his sources. And in addition to

trailing Anderson to and from his home, his church,

and his meetings, the agency “rented a room high up

in the Statler Hilton Hotel, across the street from

Anderson’s office, to watch and photograph the

comings and goings of the newsman and his

informants.” Mark Feldstein, Poisoning the Press:

Richard Nixon, Jack Anderson, and the Rise of

Washington’s Scandal Culture at 207 (2010).

Though the government’s surveillance of

Anderson was an extreme case, it is, unfortunately,

not an isolated one. Other reporters on Anderson’s

staff—including a young Brit Hume, now senior

political analyst for FOX News Channel—were

likewise targeted for around-the-clock visual

surveillance. See Q&A: Brit Hume Recollects the Days

of Being a CIA Target, Fox News (June 29, 2007),

https://perma.cc/T4D6-E6AD. And the Washington

Post’s Michael Getler earned the same invasive

treatment—a

CIA

nest

established

“where

observation could be maintained of the building

housing his office”—after he published a report on the

movements of Soviet submarines. Memorandum from

Howard J. Osborn, Central Intelligence Agency,

“Family Jewels” at 27 (May 16, 1973),

https://perma.cc/D5TY-AMF7; see Karen DeYoung &

Walter Pincus, CIA to Air Decades of Its Dirty

Laundry,

Wash.

Post

(June

22,

2007),

https://perma.cc/QCY9-M2TC.

As egregious an assault on press freedom as

this Watergate-era surveillance of journalists was,

though, traditional “practical” checks on visual

surveillance constrained the government’s ability to

achieve its unconstitutional goals. Jones, 565 U.S. at

429 (Alito, J., concurring in the judgment). For one,

because it took “a team of sixteen undercover officers”

to keep a consistent eye on Anderson, the operation

was labor-intensive and conspicuous; Anderson

caught on, taking steps to preserve the confidentiality

of his sources while exposing the operation to public

ridicule. Feldstein, supra, at 206, 211. The effort was

bounded, too, by the limits of the agents’ memory and

perception. Though the CIA watchers in fact captured

a photo of one of Anderson’s reporters meeting with a

key source, the spies failed to recognize what they had

managed to record. See id. at 212.

Today the same surveillance could be

accomplished with a pole camera, dissolving those

practical checks on abusive monitoring. Unlike a

crowd of investigators in dark suits, a pole camera is

cheap and discreet, evading the constraint that

“limited police resources and community hostility”

impose on obtrusive law enforcement tactics. Illinois

v. Lidster, 540 U.S. 419, 426 (2004). As the U.S. Court

of Appeals for the Seventh Circuit acknowledged in a

similar case, the devices here have “the practical

advantage of enabling the government to surveil

[Petitioner’s] home without conspicuously deploying

agents to perform traditional visual or physical

surveillance.” United States v. Tuggle, 4 F.4th 505,

511 (7th Cir. 2021). And “[u]nlike the nosy neighbor

who keeps an eye on comings and goings,” cameras

like these “are ever alert, and their memory is nearly

infallible.” Carpenter, 138 S. Ct. at 2219. Soon,

surely, their capacity will be augmented further by

increasingly

pervasive

“facial

recognition”

technologies. Pet. App. 74a. The result is that the

kind of sustained visual surveillance that once

required the personal approval of high officials and

the outlay of significant resources, see Feldstein,

supra, at 212, has come within the reach of any petty

authority hoping to indulge a curiosity.

II.

The Fourth Amendment requires a

warrant before investigators engage in

targeted, persistent camera surveillance

that would chill First Amendment rights.

If the threat of constant, limitless camera

surveillance hangs over each home and newspaper

office, the destruction of any secure setting for

anonymous association will have a grievous effect on

reporters’ relationships with confidential sources.

And “without some protection for seeking out the

news, freedom of the press could be eviscerated.”

Branzburg v. Hayes, 408 U.S. 665, 681 (1972). As this

Court’s precedents make clear, that threat to the

interests the First and Fourth Amendments both

safeguard requires strict adherence to the warrant

requirement when the government conducts

surveillance that will chill the exercise of First

Amendment rights.

Fourth Amendment safeguards are

of heightened importance where

First Amendment rights are at risk.

From the outset, the protections of the First

and Fourth Amendments have been closely

intertwined.

Just as “Founding-era Americans

understood the freedom of the press to include the

right of printers and publishers not to be compelled to

disclose the authors of anonymous works,” Ams. for

Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2390

(2021) (Thomas, J., concurring) (citation and internal

quotation marks omitted), the prohibition on

unreasonable searches was widely understood as a

response to abusive English practices targeting the

publishers of dissident publications, see Stanford, 379

U.S. at 482. As this Court has often observed, two of

the landmark cases that informed the Fourth

Amendment’s adoption—Entick v. Carrington, 19

How. St. Tr. 1029 (C.P. 1765), and Wilkes v. Wood, 19

How. St. Tr. 1153 (C.P. 1763)—were press cases. And

whether a particular case involves the institutional

press or not, Lord Camden’s insight that a

“discretionary power given to messengers to search

wherever their suspicions may chance to fall” is

“totally subversive of the liberty of the subject”

continues to inform interpretation of the Fourth

Amendment today. Marcus, 367 U.S. at 728–729

(quoting Wilkes, 19 How. St. Tr. at 1167).

This Court has insisted, in that light, that the

Fourth Amendment’s requirements be enforced with

an eye toward protecting First Amendment interests.

See Zurcher, 436 U.S. at 564. In some settings, those

interests demand a searching application of the

Fourth Amendment’s usual standards, because “[t]he

necessity for a prior judicial determination of probable

cause will protect against gross abuses,” New York v.

P.J. Video, Inc., 475 U.S. 868, 874 (1986) (quoting

Heller v. New York, 413 U.S. 483, 492–93 (1973)); “the

preconditions for a warrant” will deny officers

discretion to “rummage at large” or “deter normal

editorial and publication decisions,” Zurcher, 436 U.S.

at 565–66. On other footings, because “the First

Amendment operates independently of the Fourth

and provides different protections,” Nieves v. Bartlett,

139 S. Ct. 1715, 1731 (2019) (Gorsuch, J., concurring

in part and dissenting in part), this Court has

underlined that search regimes implicating

distinctive First Amendment interests may require

stricter safeguards than the Fourth Amendment,

alone, would provide.

In United States v. Ramsey, 431 U.S. 606

(1977), for instance, having concluded that the Fourth

Amendment permits warrantless searches of mail at

the border, this Court reserved the separate question

whether such searches would “impermissibly chill[]

the exercise of free speech” if not for a statutory

reasonable-suspicion requirement and a ban on

reading any correspondence contained therein, id. at

624; see also Tabbaa v. Chertoff, 509 F.3d 89, 102 &

n.4 (2d Cir. 2007) (separately analyzing certain border

searches under the Fourth and First Amendments).

To similar effect, this Court has held that other

warrant exceptions—the “‘exigency’ exception,” for

instance—must yield to First Amendment interests

where, say, forgoing a warrant before seizing books or

films “would effectively constitute a ‘prior restraint.’”

P.J. Video, 475 U.S. at 873 (citing Roaden v. Kentucky,

413 U.S. 496 (1973)). Across diverse contexts, then,

the First and Fourth Amendments work together to

ensure warrantless search regimes do not abridge the

freedoms of speech and the press.

When the government points a pole camera at

a newspaper office rather than an alley, or “a place of

worship” rather than “an interstate highway,”

Commonwealth v. Mora, 150 N.E.3d 297, 308 (Mass.

2020) (citation omitted), its use squarely implicates

those overlapping First and Fourth Amendment

protections for “privacy in one’s associations,” Ams. for

Prosperity, 141 S. Ct. at 2382 (quoting NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)).

Like reading a traveler’s letters or seizing a seller’s

books, surveillance of the home in particular—as

opposed to a stretch of highway—is the kind of search

power systematically likely to burden the exercise of

First Amendment rights. That much is true whether

in a particular case the government’s camera captures

Sheehan visiting Ellsberg or a homeowner meeting

with her pastor. And the rule governing such

surveillance must be framed with the “scrupulous

exactitude” this Court requires where the

government’s discretion could, if left unregulated, be

abused in future cases to tread on First Amendment

interests. Stanford, 379 U.S. at 485.

Under

Carpenter,

the

Fourth

Amendment requires a warrant to

intrude on the associational rights

threatened by location surveillance.

This Court’s precedents concerning locationtracking, in particular, provide the appropriate

approach to the analysis—and they reflect the

attention to First Amendment interests that the

Lynch concurrence gives short shrift. Having long

recognized as a general matter that “[a]wareness that

the government may be watching chills associational

and expressive freedoms,” Jones, 565 U.S. at 416

(Sotomayor, J., concurring), this Court affirmed in

Carpenter that those confidential associations remain

entitled to Fourth Amendment protection—and in

particular the shelter of the warrant requirement—

when reflected in an individual’s “particular

movements.” 138 S. Ct. at 2217. After all, “[a] person

does not surrender all Fourth Amendment protection

by venturing into the public sphere. To the contrary,

‘what [one] seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected.’” Carpenter, 138 S. Ct. at 2217 (quoting

Katz v. United States, 389 U.S. 347, 351–52 (1967)).

In particular, under Carpenter, the government

intrudes on a reasonable expectation of privacy when

it gathers information that “provides an intimate

window” into an individual’s “associations,” id. at

2217 (citation omitted), information the citizen has

“no way to avoid leaving behind,” id. at 2220, and

which new technology allows the government to

gather where, historically, analogue surveillance

would have been “difficult and costly and therefore

rarely undertaken,” id. at 2217 (citation omitted).4

The recording of eight months of footage of

Petitioner’s private residence from a surreptitiously

installed pole camera plainly qualifies.

For one, as discussed above, persistent and

targeted surveillance of the home will predictably

expose a range of confidential associations, including

reporter-source contacts. And to authorize targeted,

around-the-clock pole camera surveillance of an

individual’s front door is to stake out an act—entering

and exiting the home—as involuntary as owning a cell

phone. A person must go out into the world not only

to fulfill basic needs, but also to reap the benefits that

participation in public life may bring. As this Court

emphasized recently, the Constitution defends

privacy in association in the first place to promote

“[e]ffective advocacy of both public and private points

of view.” Ams. for Prosperity, 141 S. Ct. at 2382

(citation omitted). A reporter cannot gather the news

exclusively from the comfort of a living room. And the

Crown, for that matter, rummaged through John

Wilkes’ home for the paper he planned to go out and

Different considerations would be implicated in defining

an individual’s reasonable expectations of privacy as against

actors other than the government in, say, the context of the

privacy torts. “[T]he Fourth Amendment imposes higher

standards on the government than those on private, civil

litigants,” In re Facebook, Inc. Internet Tracking Litig., 956 F.3d

589, 604 n.7 (9th Cir. 2020), in part “[b]ecause of the special

considerations involved in defining the private citizen’s

protection against intrusion by the government” and in part

because the government, unlike a private citizen or member of

the press, has no First Amendment information-gathering rights

of its own to be weighed in the balance, Sanders v. Am. Broad.

Cos., 978 P.2d 67, 74 n.3 (Cal. 1999).

distribute, not a diary he planned to keep to himself.

See Laura K. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181, 1199 & n.82

(2016). At base, the right to confidential association

would be of little use—to journalists or anyone else—

if it protected only those who opt never to leave home

or accept visitors.

Finally, there can be no serious dispute that the

surveillance at issue would be practically impossible

without the aid of developments in pole camera

technology. Yet the Lynch concurrence nevertheless

characterizes the long-term pole camera surveillance

here as a type of “conventional surveillance

technique[]”—akin to use of a “security camera[]”—

that Carpenter did not “call into question.” Pet. App.

92a (quoting Carpenter, 138 S. Ct. at 2220).

The analogy fails. Traditional security cameras

can only coincidentally capture the associational

activities that were the touchstone of Carpenter’s

Fourth Amendment analysis—they can only

serendipitously catch a reporter and a source meeting

in a park, for instance. See Carpenter, 138 S. Ct. at

2220 (grouping security cameras with “other business

records that might incidentally reveal location

information” (emphasis added)). Here, of course,

there was nothing incidental about what the camera

captured. Law enforcement surveilled the Petitioner

in a targeted, pervasive fashion, recording and storing

every coming and going from her private residence for

eight months.

That constant, systematic, and

technology-assisted stake-out opens just the sort of

“intimate window into a person’s life” for which

Carpenter requires a warrant. 138 S. Ct. at 2217.

Similarly, it is hard to understand how the

Lynch concurrence could conclude that the

surveillance of Petitioner’s home was permissible

because it captured less than “an exhaustive picture

of [her] every movement.” Pet. App. 105a (quoting

Tuggle, 4 F.4th at 524). True enough, the interactions

and movements captured here were part of a larger

whole. But the same could have been said of the

collection of less than four weeks of GPS monitoring

in Jones, which could only track the movement of the

defendant’s car, or the 127 days of cell-site location

information in Carpenter, which were not granular

enough to “reveal where Carpenter lives and works.”

Carpenter, 138 S. Ct. at 2232 (Alito, J., dissenting); see

also Leaders of a Beautiful Struggle v. Baltimore

Police Dep’t, 2 F.4th 330, 342 (4th Cir. 2021) (en banc)

(“The datasets in Jones and Carpenter had gaps in

their coverage, too.”). But in each case, this Court

asked not what the degree of monitoring the

government opted for happened to reveal, but what

unregulated use of the technology would allow the

government systematically to reveal.

And rightly so. The Fourth Amendment forbids

the accumulation of “arbitrary power” in the first

instance; the Constitution is not reassured by the

suggestion that the government exercised arbitrary

power responsibly in a particular case. Carpenter, 138

S. Ct. at 2214 (quoting Boyd v. United States, 116 U.S.

616, 630 (1886)); cf. United States v. Stevens, 559 U.S.

460, 480 (2010) (“[T]he First Amendment protects

against the Government; it does not leave us at the

mercy of noblesse oblige.”). The First Circuit could

deadlock as it did only by losing sight of the founding

insight that connects the First and Fourth

Amendments—that “discretionary power given to

messengers to search wherever their suspicions may

chance to fall” is “totally subversive of the liberty of

the subject.” Marcus, 367 U.S. at 728–729 (quoting

Wilkes, 19 How. St. Tr. at 1167). Under such a regime,

the freedoms of speech and the press could not

survive.

* **

The technology at issue in this case poses an

untenable threat to confidential association, and with

it the freedom to gather news. Too many lower courts

have acquiesced in a framework that would give the

government discretion to surveil citizens in the most

constitutionally sensitive of locations without a

quantum of suspicion—to keep, among other

predictable targets, inquisitive reporters and

suspected sources under constant supervision. The

press could not, under that scrutiny, provide the

vigorous check on government that the Constitution

recognizes and protects. This Court should grant

review to reaffirm that a warrant is necessary to

protect the rights enshrined in the First Amendment

from persistent, pervasive, targeted government

surveillance. “No less a standard could be faithful to

First Amendment freedoms.” Stanford, 379 U.S. at

485.

CONCLUSION

For the foregoing reasons, amici respectfully

urge the Court to grant Petitioner’s writ of certiorari.

Respectfully submitted,