Abstract 

Courts have historically treated visual and auditory surveillance differently, leaving domestic silent video surveillance (“DSVS”), which captures images without sound, in a constitutional and statutory gray area. Title III of the Omnibus Crime Control and Safe Streets Act applies only to “aural” interceptions, leading courts to require DSVS warrants to meet Fourth Amendment standards of probable cause and particularity, while not extending Title III’s procedural safeguards to these cases. This omission is significant: without Title III’s built-in accountability mechanisms—including judicial reporting, civil remedies, and administrative discipline—agents conducting DSVS face fewer constraints compared to those using wiretaps, despite the greater intrusiveness of visual monitoring.

This article traces the development of DSVS doctrine through cases such as United States v. Torres, Mesa-Rincon, and Koyomejian. Demonstrating how a narrow textual interpretation of Title III diverged from Congress’s original intent to impose comprehensive oversight on invasive surveillance. In dissent, Judge Cudahy argued that this narrow interpretation ignored the broader purposes of both Title III and the Foreign Intelligence Surveillance Act ("FISA"), which aim to regulate all forms of intrusive electronic surveillance through judicial oversight. His reasoning suggests that the statute’s silence on video surveillance likely reflects legislative oversight rather than deliberate exclusion, and that Title III’s framework was intended to evolve alongside technological advancements.

This article examines Judge Cudahy’s interpretation, arguing that extending the accountability provisions of Title III to DSVS and similar tools would restore the balance between privacy and investigation that Congress intended by ensuring that intrusive surveillance methods remain subject to statutory oversight informed by Senate reports and historical context, which preserves Congress’s authority to clarify or narrow the statute while maintaining heightened accountability for rapidly evolving technology.