In Montana State Fund v. Simms, a case decided by the Montana Supreme Court, two Justices suggested that the Fourth Amendment limits the government’s ability to videotape individuals in public. At issue in the case was whether videotapes taken of Simms could be used in relation to his claim for worker’s compensation. Simms had been injured in the course of his employment and was awarded over $600,000 by the Montana State Fund (MSF). Subsequently, the MSF decided to verify Simms’ ongoing disability and launched an investigation led by the Special Investigative Unit (SIU) which produced multiple videos of Simms in public settings. The videos showed that Simms’ condition had improved and, according to MSF, that Simms had faked or feigned his disability. MSF disseminated the videos to Simms’ treating physician.
Simms objected to the use of the videos in the worker’s compensation claim proceedings. The majority concluded that the videos were properly deemed “confidential criminal justice information” and could be disseminated for the purpose of the worker’s compensation claim because Simms’ privacy did not clearly exceed the need for public disclosure.
In a concurrence, two Justice argued, however, that the videotaping is illegal in light of the recent US Supreme Court decision in United States v. Jones. In Jones, the Court held that a GPS device attached to Jones’ car without his consent and without a warrant was unconstitutional under the Fourth Amendment. The two justices emphasized that like a GPS device, the videotaping could reveal extensive information about the individual such as “familial, political, professional, religious, and sexual associations.”
These observations resonate with respect to SIU’s admitted practice of tracking, monitoring, and videotaping workers’ compensation claimants as they go about their daily lives. MSF and SIU 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.