Can't Scan Without a Warrant

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.
http://www.epic.org/

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)
Author: Declan McCullagh
Published: June 12, 2001
Copyright: 2001 Wired Digital Inc.
Contact: newsfeedback@wired.com
Website: http://www.wired.com/