Does Jones Create A Right Not to Be Videotaped in Public Without A Warrant?

Two Justices of the Montana Supreme Court think so, based on a special concurrence in Montana State Fund v. Simms (February 1, 2012). Justice Nelson (joined by Justice Wheat) suggests that under United States v. Jones, the Fourth Amendment limits the government’s ability to videotape people in public to determine if they are engaged in worker’s compensation fraud. Simms claimed to be disabled as a result of a workplace injury, and he was given worker’s compensation benefits through a state insurance program, the Montana State Fund. Investigators from the Fund thought Simms might be lying about his injury, and investigators “took multiple videos of Simms in public settings, looking for evidence of his physical activities and his possible ability to return to work. The twelve DVDs include two videos taken in 2002 and videos taken on more than ten occasions in 2006 and 2007, apparently totaling over two hours of footage.”

In their special concurence, Justices Nelson and Wheat suggest that this public camera surveillance could have violated the Fourth Amendment. After extensively quoting from the opinions in Jones, they conclude:

[The state fund investigators] are flat wrong in their belief that this sort of surveillance and information gathering does not implicate constitutional rights because “a person has no privacy expectation for what he or she does in plain view in public.” Montanans do retain expectations of privacy while in public. And Montanans do not reasonably expect that state government, in its unfettered discretion and without a warrant, is recording and aggregating their everyday activities and public movements in a manner which enables the State to ascertain and catalog their political and religious beliefs, their sexual habits, and other private aspects of identity.

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