Harvard Journal of Law & Technology Volume 10, Number 3 Summer 1997 TECHNOLOGICALLY-ASSISTED PHYSICAL SURVEILLANCE: THE AMERICAN BAR ASSOCIATION'S TENTATIVE DRAFT STANDARDS Christopher Slobogin" TABLE OF CONTENTS I. INTRODUCTION ..................................... 385 II. THE LEGAL RESPONSE TO PHYSICAL SURVEILLANCE ........ 389 A. Factors from the Case Law ....................... 390 1. The Nature of the Place To Be Observed ......... 390 2. The Steps Taken to Enhance Privacy ............ 392 3. The Degree to Which the Surveillance Requires a Physical Intrusion Onto Private Property (i.e., the Location of the Observer) ..................... 392 4. The Nature of the Object or Activity Observed .... 393 5. The Availability of the Technology to the General Public ..................................... 394 6. The Extent to Which the Technology Enhances the Natural Senses .................. ............. 395 7. The Extent to Which the Surveillance Is Unnecessarily Pervasive, Invasive, or Disruptive (i.e., Steps Taken to Minimize the Intrusion) ...... 396 B. Analysis of the Factors ........................... 398 C. The Narrowness of the Case Law ................... 401 III. THE ABA's APPROACH: AN OVERVIEW ................. 404 .4. The Categories of Technologically-Assisted Physical Surveillance ................................... 404 * Professor of Law, Alumni Research Scholar and Associate Dean, University of Horida College of Law; Reporter, American Bar Association Task Force on Technology and L~ Fro. fo.~enL More than is typically the case with a law review articJc, I owe a debt o t graatude to many others, most pamcularly the members of the Task For¢~ see infra note 6, who are largely responsible for the ideas described in this Article (although any errors in descn~aing the deliberations of the Task Force are mine). For their special contn'oufions 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 Standalxls 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.384 Harvard Journal of I:aw & Technology [3/ol. 10 B.<: The General Principles .......................... 408 C. Definitions .................................... 413 D. Standards Governing Specific Types of Surveillance .... 418 IV. AREAS OF CONTROVERSY ............................ 424 A. Fundamental Issues ............................. 425 I. Mission Impossible: Technological Changes Will Render the Rules Moot ....................... 425 2. Guidelines vs. Rules ......................... 426 3. Fourth Amendment Redux or Comprehensive Effort? .................................... 427 4. The Relationship of Public and Private Surveillance 428 B. General Principles .............................. 430 5. Is Privacy Invasion All We're Worded About? .... 430 6. Should the Use of the Least Intrusive Device be Required? .................................. 431 7. Should People Know They've Been Watched? ..... 432 8. Disclosure and Retention of Surveillance Results... 433 9. Is Documentation Necessary to Articulation? ...... 436 10. Giving Away Police Secrets ................... 437 C. Definitions .................................... 438 11. The Legitimate Law Enforcement Objective Standard ................................... 438 12. The Definition of Privacy ..................... 439 D. Video Surveillance .............................. 440 13. Unresolved Issues Involving Surveillance of Private Locations ............................ 440 14. To What Extent Should the Public Be Involved in Authorizing Video Surveillance of the Public? ..... 442 E. Tracldng Devices ............................... 444 15. When Is Probable Cause Required for Tracking? ... 444 16. Duration of the Court Order ................... 446 F. Illumination and T, :lescopic Devices ................ 446 17. The Confn'rna~ion Exception ................... 446 G. Detection Devices ............................... 447 18. Are Heat Waves "Abandoned"? ................ 447 19. Are General Detection Devices Too General? ..... 448 20. Should Specific Devices Be Immune from Regulation? ................................ 449 21. Fixed Checkpoints and Compelling Government Interests ................................... 450 V. CONCLUSION ... ................................... 452No. 3] Technologically-Assisted Physical Surveillance 385 APPENDIX: ABA TASK FORCE ON TECHNOLOGY AND LAW ENFORCEMENT ................................. 453 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 ch'iefdecides 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 SlumviIle 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