Even Walls Won't Protect Your Privacy Now

Even Walls Won't Protect Your Privacy Now
Posted by FoM on February 20, 2001 at 10:08:49 PT
By Tony Mauro 
Source: USA Today 
In the continuing saga of government invasion of our personal privacy, today could be a landmark day. The U.S. Supreme Court will hear arguments in a case that asks whether police may use ''thermal imaging'' devices to detect the heat coming from a house -- in this case, heat from an indoor marijuana-growing operation -- without first obtaining a search warrant. Does this police practice violate our cherished Fourth Amendment guarantee against ''unreasonable searches and seizures''? 
The case is being closely watched as a guide for a whole new generation of spy toys and detection devices that law enforcement officials are using to gather evidence against potential lawbreakers. Today, the issue is thermal imagers, hand-held devices that can detect small gradients in temperature in the houses, cars and bodies at which they are pointed. But that is just the beginning, as panelists at an American Bar Association discussion here Friday made clear. Not long from now, panelists said, we will be grappling with satellite imagery, increasingly capable of identifying small objects (marijuana bales, perhaps stolen cars) from space. The recent use of digital cameras at the Super Bowl to match attendees with the images of known criminals opens another new frontier. With the advent of retinal ''fingerprinting'' -- our retinas are unique -- one scientist in the audience said that someday a well-placed device could scan the eyes of everyone at a stadium and precisely identify every individual there. Some jurisdictions want to place transponders in all vehicles, enabling police to determine, for example, who passed by or stopped at a crime scene at a given time. Great for law enforcement, but not so great for our freedom to travel. Video cameras on street corners and night-vision devices that can identify a person from a mile away in total darkness are already in use. The explosive growth of these devices can be traced to the end of the Cold War, said panelist Ronald Goldstock, a New York lawyer. National security agencies that once did not want their surveillance devices scrutinized in court are now less worried about letting police use and defend the technology. Now is the time to intensify the study of ''the application of the Constitution to significant new forms of technology,'' said Washington, D.C., lawyer Sheldon Krantz at the San Diego discussion. The case before the Supreme Court is a good place to start. More than nine years ago, Oregon law enforcement officers used a thermal imaging device -- an AGEMA Thermovision 210, to be exact -- to determine that a lot of heat was emanating from the roof and one wall of a house on Rhododendron Drive in Florence, Ore. As they suspected, Danny Kyllo, the occupant of the house, was not growing rhododendrons or even African violets inside the house, but rather marijuana. Kyllo was arrested on marijuana-manufacturing charges in January 1992. Ever since, the courts have wrestled with whether the use of the device by police violated Kyllo's Fourth Amendment rights. As that length of time suggests, these issues are not easy. In this case and others that have looked at thermal imaging, judges cannot even agree about what is being searched by these devices. Some, including the latest ruling in the Kyllo case, say the police are only capturing ''heat waste'' outside the house and not searching or piercing the privacy of the house at all. Some have analogized this ''heat waste'' to the garbage you put at the side of the road for collection -- which the Supreme Court has already said can be searched by police without a warrant. That strained logic has been rejected by other courts that correctly see the use of these devices as a search of the home itself, not just its emanations. These thermal devices pick up not only ''heat waste'' outside, but also can detect legitimate uses within, such as a hot tub or, as one court artfully put it, ''two commingled objects emitting heat in a bedroom at night'' through an open window. What happened to Kyllo was clearly a search that should have been subject to Fourth Amendment constraints. Ever since the Supreme Court first grappled with the Fourth Amendment implications of wiretapping technology early in the past century, a major factor it considers is whether the police activity violates what society would regard as a reasonable expectation of privacy. By now, for example, we no longer have a reasonable expectation that the contents of our luggage will be private when we head to the airport. As a result, officials there can pass our bags through a metal detector without first obtaining a search warrant. With thermal imaging, as with the other new surveillance devices, that expectation of privacy needs to be preserved in the law early in the life of the technology. Once a new method of invading privacy becomes commonplace, in an oddly self-fulfilling way, it is hard to stop, because the public's expectation of privacy from the device has been washed away. The case of Danny Kyllo may be the last best chance for the Supreme Court to draw the line boldly in favor of privacy and to keep our homes, at least, secure from the Orwellian future of a heat-seeking, eyeball-scanning, omnipresent government. Note: Tony Mauro is Supreme Court correspondent for Legal Times and American Lawyer Media; He is a member of USA TODAY's board of contributors.Source: USA Today (US)Author: Author: Tony MauroPublished: February 20, 2001 Copyright: 2001 USA TODAY, a division of Gannett Co. Inc.Address: 1000 Wilson Blvd., Arlington VA 22229Fax: (703) 247-3108Contact: editor usatoday.comWebsite: Articles:Supreme Court Hears Marijuana Case To Consider Constitutionality of Imaging Redraws Privacy Lines 
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Comment #11 posted by FoM on March 18, 2001 at 18:37:36 PT:
Related Article
Thermal Imagers, Night Vision Goggles
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Comment #10 posted by dddd on February 21, 2001 at 00:35:51 PT
good intentions
Good one Nifty. Heat waste,,,Sound waste,, "While on patrol for the Energy Departments Insulation Verification program,we just happened to notice some homes that were improperly insulated.Inour concern for these taxpayer/homeowners,we felt it was our duty to dispatch a SWAT team to inform the homeowners of the problem,and check the home to verify that it was properly insulated." If the court decides that thermal imaging is OK,it will open a whole new door for massive surveilance of the public in many other ways.Why not investigate people who make alot of phone calls?,,or drive their cars alot?..They already go after people who go to certain gardening supply stores. I hate to say it,but I wont be that suprized if the court decides to further trash the Constitution.People have been sufficiently numbed to raise any significant objections to them.It will not even make the front page.....dddd
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Comment #9 posted by Ptah on February 20, 2001 at 22:11:41 PT
Who are to criminalize a plant......after all it was given by the god they claim to be a part of.....why do our brains have receptors for thou( is about time we start holding all living things in reverence)......after all we are food for the plants.
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Comment #8 posted by NiftySplifty on February 20, 2001 at 21:55:42 PT
I just love how they justify themselves.
Oh, it's just heat waste. If some ordinary (yet peeping) citizen used this as a defense, he'd be in jail! He testified in court, "I wasn't actually viewing the couple nude in bed. I was receiving light waste which was outside the building, and thus public the trash out front. Also, I didn't hear the action, I just received the sound waste which was also outside, and therefore public.Soon, the narcs will be legally able to do absolutely everything, so long as they aren't physically inside the building before a warrant...but that won't stop them.Nifty...
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Comment #7 posted by Dan B on February 20, 2001 at 17:17:24 PT:
Living off the Fat of the Pigs
Here's an idea . . .This will take some time, but begin your indoor growing experiments with hydroponic tomatoes or other vegetables. Then, wait for the thermal-imaging-bandits (that would be the police) to drop by and take a picture of light emitting from your "grow operation." Be sure to take plenty of pictures (before and after).When they break down your door and raid your home, sue the hell out of the bastards. Guaranteed, they will not be back once the city has to fork over a couple million for damage to your home plus psychological distress. In the mean time, you'll have some great produce to snack on.Then grow what you want--all financed by the city of your dwelling.Dan B
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Comment #6 posted by kaptinemo on February 20, 2001 at 17:07:52 PT:
Sorry, no BDU's
Take it from an old ex-grunt, the BDU idea won't work. Simply because the amount of heat generated by the kind of lamps needed for good growing is simply too noticable. And localized.Beside, the cloth of BDUs were treated with IR absorbing chemicals. That's partly why they were so damned hot.The technology has simply gotten too good. And because of this, has finally forced an issue to the surface which will determine just how much of our much tattered freedoms we can keep. In an aside, since the entire basis of the argument is presumed suspicion (why did the cops go to the specific house?) then by the same token, every person who buys a large quantity of fiberglass insulation becomes a target for investigation. After all, they might now be trying to hide possible thermal signatures relating to criminal activity. Can we now expect to see the local LEO's standing in the parking lots of every Home Depot, taking down the license plate numbers of every homeowner trying to save money on heating bills in the face of rising energy costs? Will that be cited as probable cause for a warrant? Will we see Bill Bennett railing against the Pink Panther and in the same fashion as the row over Joe Camel?The absurdity of the antis is becoming increasingly impossible to ignore. Perhaps if the Supremes rule as I expect those atherosclerotic clot-brains done in the past, that absurdity will finaly rise to the level of the public's radar screens.I can't wait.
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Comment #5 posted by try this on February 20, 2001 at 14:40:28 PT
How about military issue bdu material or military issue paint for their vehicles ??? infared scattering i think
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Comment #4 posted by Cyberguy on February 20, 2001 at 13:46:58 PT
Lead paint will protect you from X-Ray vision
But not from the Thermal Imager. It's looking at infrared- heat, and I can tell you from living in my 100-year-old house that lead paint doesn't keep the heat in! (although it might protect you from nuclear holocaust, ala The Simpsons.Insulation and location are the keys. Put it in the basement and R it to death. Seal cracks. Run your exhaust up the chimney. If you spend the bucks, you can ward off the imager.I have a question: Regardless of the fact that excessive heat is being generated by HID lighting, how does that correlate to illegal activity? Tomatoes, carrots, potatoes, pot, they all like light and they like it a lot!(And yes, I've seen innumerable kids suck on the windowsill! Cats too! Then they move on to electrical sockets!!)
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Comment #3 posted by sm247 on February 20, 2001 at 12:10:41 PT
Fight back
If this was considered constitutional then the same technologies would be constitutional for us to use too.Fight fire with fire!Got lead-based paint.hint lol now we know why lead based paint was removed from the market I never ever saw a kid nibbling on a windowseal have you?
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Comment #2 posted by Lehder on February 20, 2001 at 10:28:11 PT
gotta slo down.
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Comment #1 posted by Lehder on February 20, 2001 at 10:24:37 PT
background & previous decisions comparison to spying on a person's reading material by means of a distant telescope focused through a window is most apt.I say that, by another analogy, if you are so low as to surreptiously open someone's diary and you find something in there that bothers you, then that's your problem. Keep it to yourself.
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