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| Can't Scan Without a Warrant |
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Posted by FoM on June 12, 2001 at 06:31:13 PT By Declan McCullagh Source: Wired Magazine 
If the feds want to spy on your home using whizzy tech gadgets, they'd better get a warrant first, the Supreme Court said on Monday. In an important 5-4 ruling that extends privacy's shield to radiation not visible to the human eye, the court said federal agents should have obtained a warrant before using an infrared imaging device to snoop on Danny Lee Kyllo, an Oregon man they later arrested for growing marijuana. The decision, written by conservative Justice Antonin Scalia, said even though the law has long allowed police to peer at homes through their naked eyes, enhanced cameras and similar devices in law enforcement hands "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home." This ruling seems likely to affect how federal and state police may use their rapidly-growing arsenal of advanced surveillance tools. In the Kyllo case, agents used an Agema 210 unit to detect unusual heat emissions from the halide lamps used to grow marijuana. Since the Interior Department's unlawful surveillance of Kyllo in January 1992, infrared and other forms of electronic monitoring devices have become far more invasive, and the Justice Department has spent millions of dollars in research on X-ray devices that can see through even brick and concrete walls. "Certainly optical performance has improved. And over the years thermal sensitivity has grown a lot greater," said Doug Little, spokesman for FLIR Systems of Portland, Oregon, which bought Agema in 1998. "Cameras are a lot more accurate now." FLIR -- http://www.flir.com/ -- no longer lists the Agema 210 on their website. Little says that police typically now opt for the MilCAM LE, a handheld infrared camera that weighs 3 pounds, costs about $50,000, and is advertised with this slogan: "Perpetrators can turn out the lights but they can't turn off the heat." http://www.flir.com/ground/products/milcamle/index.htm/ln=dp/lang=EN The slender majority of the justices in the Kyllo case strongly reaffirmed the common law belief that a man's home is his castle, as described by Sir Edward Coke four centuries ago: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." http://www.bartleby.com/100/122.4.html That strident defense of privacy against government intrusion makes Kyllo "probably the most significant decision on the constitutionality of technologically-aided electronic surveillance in a generation," said Marc Rotenberg, director of the Electronic Privacy Information Center in Washington, D.C. Noting that the Court's majority decided that Americans inside their homes expect their heat signatures and other incidental emissions to be private, Rotenberg said that the case breathes new life into the Fourth Amendment "after its battering by overflight, nightscopes, dog sniffing and other techniques that courts have generally found do not violate the 'reasonable expectation of privacy test.'" Larry Lessig, a professor of law at Stanford University, agrees that the case is a landmark one -- at least, if the slim majority can prevent one of its side from defecting. http://cyberlaw.stanford.edu/lessig/content/index.html "The question is how sustainable it is," Lessig said. "Given the range of these technologies and the minimal actual kind of invasion they present, the question is whether the court will be resolute in protecting this conception of private spaces instead of yielding to the temptation to allow (surveillance) of criminal activity." Since the Fourth Amendment prohibits "unreasonable" searches and seizures, it implicitly permits reasonable ones. In Kyllo, the majority wrestled with whether viewing a home with electronically-enhanced gear was even a search at all. Scalia concluded that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search -- at least where (as here) the technology in question is not in general public use." Future technology, Scalia said, might even reveal "at what hour each night the lady of the house takes her daily sauna and bath." In a dissent, liberal Justice John Paul Stevens -- joined by conservative Chief Justice William Rehnquist, and swing-vote Justices Sandra Day O'Connor and Anthony Kennedy -- sided with the Justice Department's defense of warrantless surveillance, saying disparagingly that "the countervailing privacy interest is at best trivial." "Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not one that society is prepared to recognize as 'reasonable,'" Stevens said. This decision could influence whether police need a warrant to capture radio frequency emissions -- a practice known as TEMPEST monitoring -- produced by CPUs and monitors. http://www.nlectc.org/techproj/nij_p26.html http://www.wired.com/news/politics/0,1283,32097,00.html The minority said they dissented because the "observations were made with a fairly primitive thermal imager" that could only see rough heat patterns and no details -- but TEMPEST monitoring is reportedly far more precise. http://www.nlectc.org/techproj/nij_p44.html http://www.nlectc.org/techproj/nij_p26.html On a related note, the Justice Department is paying for research on projects that include the Radar Flashlight and the Radar-Based Through-the-Wall Surveillance System, which can detect the presence of people through wooden doors, concrete walls and brick buildings. Source: Wired Magazine (CA) Related Articles: High-Tech Devices Require a Warrant Court Limits Police's High-Tech Search of Homes Court Rules on Heat-Sensor Searches Supreme Court Rules Thermal Imaging Is a Search Home Comment Email Register Recent Comments Help |
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Comment #3 posted by Ed Turner on August 05, 2001 at 13:40:43 PT:
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| It may be true that a warrant need be issued, but there are loop holes just like everything in the law. First and foremost the understanding of proper procedure. There are aknowledged laws pertaining to suspicion. IE, I get pulled over for suspicion of narcotics trafficking. The officer has a right to detain me while requesting a warrant to search my vehicle. Today warrants are computer generated at police staions and are tied in with an automated court odering system. It is all in which the procedure is correctly followed that can make a search and seizure flawless. So now the locals learned a lesson. The next time they will use the correct method and bag whoever whenever. [ Post Comment ] |
| Comment #2 posted by FoM on June 12, 2001 at 21:59:39 PT |
| Supreme Court: Relax. The Heat is Off June 11, 2001 at 17:34:30 PT By Jessica Reaves Source: Time Magazine The Court rules police need a warrant to conduct "heat" searches. What does this mean for you? Hi Dude, Let’s say the police suspect something illegal is going on in your house. Which of the following can they do without getting a search warrant? a) put a bug in your phone Supreme Court: Relax. The Heat is Off [ Post Comment ] |
| Comment #1 posted by Dude on June 12, 2001 at 14:04:09 PT |
| Now that they need to get a warrant to use a thermal image device, what do they need as probable cause? And once they get the warrant, when do they have to inform the person which the warrant was issued for? Or don't they? I am curious because it wouldn't do much good to get a warrant for a wire tap and then have to tell the person they are eavesdropping. [ Post Comment ] |
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