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Supreme Court Limits High-Tech Snooping
MacRonin writes: "In an important declaration of the constitutional limits on new privacy-threatening technology, the Supreme Court ruled yesterday that the use by the police of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a warrant. The court said further that the warrant requirement would apply not only to the relatively crude device at issue but also to any "more sophisticated systems" in use or in development that let the police gain knowledge that in the past would have been impossible without a physical entry into the home. "We must take the long view, from the original meaning of the Fourth Amendment forward," Justice Antonin Scalia wrote for a 5-to-4 majority that cut across the court's usual ideological division. Justice Scalia said that to take any other approach "would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all human activity in the home." There is coverage in the: New York Times, Washington Post, and CNN. This older piece has a little background."
Alex Bischoff
Alex Bischoff
HTML/CSS coder for hire
I fail to see the parallels between breaking the law to correct existing injustices and breaking the law to get high.
If you don't like the law, change it. Don't just ignore and say it's not fair when you get caught.
If it went to trial, they would have to explain this and then it would get thrown out. They would need a good reason to be watching your house in the first place (I'm not familiar with probable cause laws, but if they had to resort to an infrared imager to suspect you in the first place I don't think they'd be able to meet those criteria for anything else).
no, the psychic friends are widely available to the public. Just give them a call :)
I'd have to say there is a difference between drugs. Tobacco, Pot, alcohol are one thing, and cocaine, heroin, crank are something else.
Not all drug laws are the equivalent of moral laws. The production and distribution of cocaine, heroin and crank have serious geo-political, criminal, social and in the case of crank, environmental side effects that pot, alcohol and tobacco do not have.
I'm all for the decriminalization of pot, and for the legal war to end against tobacco (even though I'm not a user) and that the use of alcohol between the ages of 18 and 21 be legalized, but I am not for the legalization or decriminalization of your "hard" drugs like cocaine or crank. More needs to be spent on treatment, but it should not be legalized.
It seems like a reasonable standard. If I leave the drapes open and someone looks into my window that is my problem, if I didn't want them to see I should close my drapes. And the court did say that this applies to any new technology.
I think this is very good law.
IANAL
Erlang Developer and podcaster
What they said is actualy that the police need a warent if they are using some tool that the average person does not have access to. So for example if they are looking into my window with a telescope they probably do not need a warent, after all if they are looking in my window with a telescope I can easily block that by drawing my drapes. But if its an IR night vision thing they probably do. Hey its not a perfect ruling but from what I heard last night from Nina Totenburg on NPR it sounds like its quite good.
Erlang Developer and podcaster
IANAL
I think they are drawing a distiction. If a cop sees me beating up someone threw my window he does not need a warent to do something. If he was using Night Vision goggles he does.
Erlang Developer and podcaster
eh? then why are radar guns (for detecting the speed of a vehicle) not "illegal search and seizure"?
BECAUSE THEY ARE!
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
I wonder if it would spot a vibrator in-situ.
These are my friends, See how they glisten. See this one shine, how he smiles in the light.
I assume that based on this judgement, van Eck phreaking (as featured in Cryptonomicon, and elsewhere) would also be considered illegal. I'm not up on US law, and don't know what difference there is considered to be between going into someone's home and someone's computer, but using van Eck (which isn't "in development", it's there now) to see what people are doing on their screens would seem to be similar to me. Are there any legal references to van Eck phreaking?
I presume that wiretaps are needed for phone-lines, but is that for speech only, or data as well? Echelon, and all the fun ways of looking at data, can get their information from lots of different places, and this, of course, is only one of them.
The law sometimes speaks in a language different from colloquial english; for example, "from time to time" is a phrase that seems vague to us, but has a specific technical legal meaning, and has for a long time.
It also strikes me as an excellent example of a case where "slippery slope" is a valid legal argument against the alternative. (Logicians are fond of pointing out that it is a fallacy in rhetoric, but law has its own rules.) What meaning does freedom from unlawful search have if the police can, given adequately advanced technology, listen in on all your conversations (telephone and physical), scan your computer monitors, [moving more and more far-off] count the change and cash stashed in your underwear drawer (imagine a microtransmitter in the place of the security strip in your large denomination bills), inventory your pockets (between smart cards, remote controls for car locks, digital "anti-theft" chips installed in keys, etc, this is not as implausible as it seems), and lift images from your brain using its ambient EM emissions, all without ever setting foot on your property?
IIRC, in that case they wouldn't be using the technology to gather evidence, so the ruling wouldn't really have any teeth to stop them. (It would make any previously unknown evidence gained in the process inadmissible in court.) Whether it might be grounds for a civil action against the police after the fact is a different question, but in the situation you describe I wouldn't think such a case would have any substantial legs to stand on.
IIRC the legal term for this is "bootstrapping" and judges dismiss evidence and cases when it is shown to have happened.
Wow. You must be about 20 years old if you think that. The games that people play to get their judges elected were happening WAY before Bork. Of course I understand where you're coming from. I, too, have the odd perception that nothing existed before I was born 32 years ago.
If tits were wings it'd be flying around.
On the other hand, we also have William Rhenquist (another so-called "strict constructionist") on the side of the dissent. And who's voting with Scalia on this one? Clarence Thomas, Ruth Baider Ginsberg, Steven Breyer, and David Souter. Some of those Justices are the ones pointed to by GOP aparachniks as examples of "judicial activism."
Finding God in a Dog
Wow, talk about a lead in. I just heard on the news on the radio that there is some new radar that "can see through underwear." I don't know how true this is, but if anyone knows of any other news items on the 'net, I would be interested. The purpose of this device is to detect concealed weapons from up to 50 feet away and sounds like it is supposed to be used at airports.
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
Richard von Weizs
It's a shame that Scalia isn't consistently a strict constructioninst. I am glad he was able to lead the court to this decision, but I think he's led them to plenty of overstepping of bounds also. How about that decision to interfere in Florida Electoral procedures? That doesn't seem to be very strictly constructionist.
7 November 2006: The day Americans realized corruption and incompetence weren't addressing 11 September 2001
It's Forward-Looking InfraRed. While I'm inclined to agree with the Supreme Court majority on this one, it is a PASSIVE technology, meaning that it does no more than pickup infrared emitted from the houses. Is this really any different than, say, using cannines to pickup a scent?
Speaking for myself, at least, it depends on the circumstances. If the police are combing neighborhoods with such intensive methods (be they dogs, FLIR, or what have you), then yes, this strikes me as being an abuse of privacy. On the other hand, if it is a suspected growing location, a very specific target, then I'm not ready to rush to their defense.
As for possible Bush nominations, this is one area where I hope he's like his Pa. Another nice independant thinker like Souter would be nice. The court doesn't need to become any more polarized. All these 5-4 decisions are bad for the law, since every time there is a new justice there's a possibility that almost identical issues could be revisited.
...
--
I hope we shall crush in its birth the aristocracy of our monied corporations
And I'd be a Libertarian, if they weren't all a bunch of tax-dodging professional whiners.
Berke Breathed
You are absolutely right when you say that production and distribution of cocaine, etc. have serious geo-political, social and criminal side effects. Which is precisely why they should be legalized. The illegal drug trade is causing serious problem and is in desparate need of regulation. That's right, we need to regulate the drug trade.
The reality is that the trade is currently almost completely devoid of meaningful regulation. By pushing the market underground, we have made it impossible to monitor and regulate the drug business. Why aren't drug manufactures following relevant environmental regulations? Why aren't drug importers and exporters sending their products thru customs like other importers and exporters? Why aren't they paying duties and tariffs? Why aren't the marketers required to get licenses to sell like other retailers and wholesellers? Why aren't any taxes being collected? Why aren't food and drug safety/purity laws being applied to these products?
These are the questions that drug warriors will refuse to answer. By persisting in the fantasy that the drug trade can somehow be eliminated, the drug trade is allowed to run amok almost completely free of regulation. Then, the damaged caused by the lack of regulation is used as "proof" that we shouldn't legalize and regulate these markets. Total bullshit thinking. The only beneficiaries of these policies are the drug dealers and manufactures and the prison-industrial complex. The drug dealers because they get to skip all the regulations that normal businesses have to follow, and they benefit from the increased profits brought about by the inflation that criminialization brings. The cops and prisons benefit from the perpetual inflation in their budgets and power which come from fighting the endless drug war. And it will never be one. Make no mistake: the only way out is "give up" and begin regulating these markets like we do the markets in other potentially dangerous goods.
The cops are allowed to perceive some wavelengths and not others. The condition of whether or not they're allowed to perceive a wavelength, is whether or not it is human-perceptable in it's raw form. The thinking behind this is probably that if people take precautions that give them a low-tech expectation of privacy, then they should be legally guaranteed (notwithstanding warrants) privacy against high-tech too, even if they haven't taken precautions to realistically give them an expectation of privacy.
You can see this type of thinking elsewhere:
It's fascinating how the legal system tries to redefine "due diligence" to exclude technological factors, so that the low-tech or ignorant people can blissfully be safe from having to consider technology.
As you can infer, I'm kinda opposed to this ruling. If you broadcast information (even if it's subtle, such as IR radiation), then it's public. I think law enforcement shouldn't need a warrant to be allowed to perceive information that is public.
OTOH, I like this ruling because it makes cops jobs harder, and that's an appropriate thing when a government is working against the interests of its citizens, as is the case with the Drug War.
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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
When there's a dispute over interpretation of the law or the Constitution, the buck has to stop somewhere. As much as I disagree with some of the decisions that the Supremes have handed down, I'd rather give the final authority to people who are somewhat insulated from the political process, rather than people who need to worry about re-election in six (or fewer) years.
However, I think the Court would be better off if justices had staggered thirty-five-year terms, instead of being appointed for life. Right now, if several justices happen to die or retire while the same party is in power, then that party can use the nomination process to (attempt to) stamp its ideology on the Court for decades after. If at least one seat on the Supreme had to turn over every four years, then political trends would influence judicial trends in a more controlled fashion.
--
send all spam to theotherwhitemeat@ropine.com
Because they're people trying to do the best of their job, just like any corporation's CEOs[1].
The problem is in their understanding of what their objectives are.
A simplicistic approach might be that a police force's job is arrest criminals. And if it stops at this, the more criminals they get, the more they're successful at their job.
The problem is that there should be more to being a police force: in the end the real job of a police force should be something like "ensure the public safety". But that's a very elusive goal, so it's easier to fall back to the simpler one (arrest as many criminals as possible [2]).
And to do this, they must stomp over the most elementary civil rights: if you (policeman) shoot in the crowd, you have some chances of hitting somebody you should, while all the innocent bystanders are "collateral damage" that doesn't appear in your curriculum, or on news outlets for that matter (think about the last time you heard a story about some innocent that has been arrested, or murdered [3]).[4]
[1] insert obligatory anti-corporations, anti-microsoft rant here
[2] after all, if everybody is in jail, there will be nobody out there that can endanger public safety
[3] somebody would use the word "executed" here. Those who do, please visit the Amnesty International website.
[4] of course I'm not suggesting that any policeman would shoot in the crowd just for the random chance to find a criminal. But I think that it can be agreed upon that the US government is undiscriminately screening children in schools, and this ruling implies that at least up to some point in time the police was undiscriminately using thermal imagin to spy in citizens' houses. This could lead to arresting people randomly.
I know you won't believe me, but I was trying to make a point.
The point was, IMO it's easy to lose sight of the high goals for something more tangible, especially if the latter will get the officier air-time and the former won't.
Given this, it's human to desire to do one's job well, and this means trying to acquire the best available tools and freedom to act to carry out that job. Unfortunately, in the case of police bodies, this means high survelliance, or as somebody calls it, a police state.
About the Amnesty International thing, it's just my anti-death penalty beliefs seeping in. THAT was offtopic, the rest of the message wasn't.
And no, I don't think that taking all the guns would solve the problem. But (sorry for the OT) I think that doing that would help solve other problems. But I'm no USA citizen, so it's not my place to tell those who are what to do and what not to do. I'm just happy that in old Europe access to firearms is restricted.
It is shocking ecause he and Renqhuist have been very favorable to the police in search and seizure issues. Renqhuist who is definately a conservative, voted against this one.
Well I think anything the cop may hear would definatly be evidence to get a search warrent, but may or may not be applicable in court itself. As you can't exactly expect a cop to ignore what they hear. Now if the cop was sneaking around listening or accidently overhear, thats another story in and of itself.
It's not a dictatorship of the Supreme Court. If we don't like what they decide about the Constitution and laws, we can go to back to the legislative branch and change the Constitution or the laws. And if you don't like the system as a whole, guess what? You can change the system with Consititutional amendments.
It kinda sounds like you might be miffed about the Bush v. Gore decision that handed the election to Bush. Get over it, that decision will be seen in 100 years as a great decision. Think about what it would mean had it gone the other way. Then candidates could demand selective recounts based on whatever standards that favor them the most. Gore's mistake was to sue to extend the recount deadline. He should have let the recount finish, then challenged the results (as provided for in Florida law) based on the widespread reports of voting irregularities.
Also, you might want to inform O'Connor's and Ginsburg's husbands that their wives are actually grumpy old men. I'm sure it'll be news to them.
-sk
Remember those guys who barely made it out of your intro to [comp.sci, biology, physics, chemistry, statistics, etc]? They are now no longer referred to as 'idiot'; the proper terminology is 'your honor'.
Jesus was all right but his disciples were thick and ordinary. -John Lennon
This is simply another waveform that is being detected. How do they decide at which point you need a court order, and at which point is it okay? How many nm detector? That's all we are dealing with. How much difference is there between the red on my Dr. Pepper can and the red that these sensors pick up?
What about 'visual wavelengths'? Well, in some cases, you need a special viewer (aka binoculars) to see an alleged criminal act. Are these now illegal? What is the difference between a pair of binoculars and an infrared camera? Both augment human vision beyond that which naturally occurs. For that matter, are police on stake-outs no longer allowed to wear eyeglasses or contact lenses?
"Oh," you reply, "but you can just put up curtains." Yeah, well you can also 'just' put up infrared deflecting panels (I believe that Pink Panther chap sells some consumer grade ones).
What about microphones? How is this different? We take a waveform that humans cannot naturally perceive (either due to amplitude, frequency, or simple placement of the sound emitting source) and modifies it for consumption.
I'm not saying that this is a bad decision necessarily. It does seem to be the right one. But how is it possible for the Supremes, not known for their scientific or mathematical skills, to have made a decision which is a technological one?
This issue is far from as black and white as others are posting.
Jesus was all right but his disciples were thick and ordinary. -John Lennon
Spock: "Captain, do you have a search warrant for this sensor scan?"
If this doesn't highlight the importance of strict constructionists on the Supreme Court, I don't know what does.
Scalia is absolutely right here, as usual: any other decision would result in our rights being quickly eroded away by advances in technology.
It's too bad the Democrats are already planning to "fight dirty" to prevent another legal mind like Scalia's from sitting on the court. (Of course, that presupposes that Bush has the cojones to nominate someone of that caliber, a very iffy proposition given his demonstrated invertebrate nature to date...)
"The future's good and the present is nothing to sneeze at." - Roblimo's last
Nice to see that I've been wearing a tin foil sailor's hat for all the right reasons. I wonder how much 4x8 sheets of 1/8" copper go for?
Laugh.
I keep trying to pick fights, but I can't shake this Excellent karma.
This is a consolidated reply, thanks to the other poster for the correction regarding the Democrats, though frankly I always suspected the Carville-crowd, even though I should have been more specific about the media rather than accusing the national Democrat party for the actions of one individual (and scary) Democrat. On to the main reply...
The Third (and the Ninth) mean what they both say. The Third is the only one that hasn't been violated with impunity since its passage, so let's stick to the Ninth, which is FAR from an inkblot. I repeat: "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." To put it in simple terms, privacy's not there, so privacy's there. Your flossing example rings only-too-true these days, frankly it makes my point better than it makes yours, as laws like your hypothetical (albeit all-too-easy-to-imagine these days...) anti-flossing law are what SHOULD BE struck down on Ninth amendment (privacy & body-ownership) grounds.
I've never said that judges should be able to argue laws into existence on the basis of the Ninth; rather, I've said that laws (and LOTS of 'em, have you ever seen the entire dead-trees version of the United States Code? It's immense.) should be repealed because of the Ninth, and it hasn't happened! Privacy IS there, and daycare isn't, because privacy (leaving us both the hell alone, as long as we have no victims) doesn't involve enslaving someone else to look after my kids (or to pay the taxes on April 15th to hire someone to look after my kids).
Think of a ratchet that only turns one way, judges properly interpreting the Ninth might UNdo plenty of the damage done by the legislature, but could not ever DO the kind of damage that unthinking Federal judges now do (think mandated spending that leads to more taxes) under the interstate commerce clause, which has been stretched beyond all recognition by a grossly irresponsible Federal judiciary.
I have no illusions that the judiciary (or most of it, at least) would see things my way without a fight (that's why I rant about these things, challenge law professors to debates, etc.) I just think that an expansive reading is fully justified for "magnificent generalities." The "textual bounds on the rights the courts can concoct" in the case of a 'fair wage' would be the contract clause, which has been ignored almost as much as the Ninth. A proper interpretation of the contract clause would mean no minimum wage (a politically-unpopular position that's ideally suited to an unelected judiciary, since it's also the right position IMO).
The "So what" about the tax-&-spend drugwar's racist past is that a lot fewer people know about it (or admit it) than should, I have no argument that the constitution also has racist roots but a lot more folks know about that. Plenty of laws (think gun control, for another example) have racist roots that their advocates today don't like to think about, so Jim Ray gets to be a walking, annoying-history-lesson whether or not I want to be. (Having my first & last names -- no relation BTW -- doesn't exactly help...)
The racist effects of the tax-&-spend drugwar can today be seen in just about any prison. Just look at the crack vs powder disparity of the US sentencing commission, which should upset you much more than it apparently does, since it usurps judicial determinations of leniency in many cases. Go visit any US prison, look at the drug inmates, and remember that this country is about 11% black. If you see 11% black inmates, I want to know what prison it is. Typical rates are more like over 50%. You can quibble about people, motives, and effects, but you've not convinced me, so the effects still ARE racist, period. It's harder to speculate about people and motives, but effects can be seen very easily.
The problem with seeing the Tenth in the absence of the Ninth is that Tallahassee can then take over where Washington DC left off in the oppression-game. I own Jim Ray's body, not Washington politicians and (here's where the Tenth comes up short on the drugwar) not Tallahassee politicians with the same last name! IOW, I don't trust the politicians in Washington, but I don't trust the politicians in any of the 50 state capitals, either. Plenty of laws should be repealed on Tenth Amendment grounds (Jenna Bush wouldn't be in trouble for drinking at age 18 if it were followed, for example, but federal highway funding is too complex an issue for this discussion).
The laws against using medical pot (to give a recent example of a Supreme Court unanimous botch-job) should have been repealed on the basis of the Ninth, with the Tenth in the background at best for the medical pot issue, since the Ninth (IMO) covers recreational drug use (like it or not). Viewing the Tenth in a vacuum is a mistake, the Bill of Rights should be read as a whole, and rights of individuals should come first, with states second, and the feds third, as a last resort if the first two can't word (example, the United States SHALL MAINTAIN a Navy, but can raise armies - the founders didn't trust a standing army for good reason -- but that's getting back to the Third amendment). Reality these days is exactly the opposite heirarchy -- Feds over States over lowly individual rights -- obviously I think that's wrong. It's not a mistake that individual rights were always put before group-rights in the Bill of Rights, and always next to the ones that mattered, and the Ninth and Tenth need to be read together just like (IMO) the first and second need to be read together, and thought of at the same time. If you think that the Ninth (or the Third, for that matter) is an inkblot, then by all means, go argue for repeal! (I doubt I'll see this happen, I have yet to find anyone who will argue for that proposition.) You don't have to, because the irresponsible Federal judiciary has effectively repealed it by ignoring it. I'm the one who has to argue and rant, the inkblot crowd merely has to sit back and relax (unless I'm too hard to ignore)!
JMR
Again speaking ONLY for myself here, I'm probably a minority of one in this.
Try e-gold - (contact me). I'm NOT e-
elefantstn is right that the process got VERY dirty with Bork, but it's wrong to say the Democrats were Bork's only opposition (far from it, check the CATO archives from the period if you doubt me) although with video-rental records, it's safe to say that Democrats were clearly the dirtiest.
:)
CATO (and Jim Ray, I'm chairman of the Ninth Amendment Foundation in my other life) opposed Bork in part because of his writings on the Ninth Amendment, which he called "an inkblot." The Ninth Amendment states:
"The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Doesn't seem like an inkblot to me! Plainly, the US constitution and especially the Bill of Rights -- no matter what Bork or (left-wing Democrat Senator) Joseph Biden or a variety of ignoramus-law-professors may say -- is not an exhaustive list of rights, but merely a starting point for the rights we SHOULD expect, and (as Jefferson called them) the Ninth & Tenth Amendments are "magnificent generalities." No, the right to privacy (and even the word, "privacy") never gets mentioned in the constitution, but IT DOESN'T MATTER! because the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people, and one of those "others" is privacy, like it or not. If you don't like it, I heartily suggest an attempt at repeal!
Of course, another of those 'other' rights is self-medication and general body-self-ownership, whether the Supreme Court, Congress, the states, and various lower courts agree or not. The tax-&-spend war on (some) drugs is un-American and morally wrong and wasteful, and it has provably-racist roots in the past and provably racist effects today, but nobody wants to admit it and honorably opt for repeal. Instead, they want me to be "reasonable," and spend even more money every April 15th on "treatment," which is a nicer version of prison, and will cost even MORE than too-many prisons letting violent offenders out to make room for more drug "criminals"!
It's funny how nobody wants to debate me on these points in an equal-footing situation. It's easy to find a law professor who will claim that the Ninth is "not important" and "means nothing" (just go to any law school & sit in on con-law if you doubt me) but find me one who thinks that the Ninth should actually be repealed and will debate me in an open forum! You can't? That's because they'd rather not think about it. I may make them mad, but I also make them think about it. The Supreme Court has never invalidated ONE LAW solely on Ninth Amendment grounds, and that's THEIR intellectual problem, not mine. I'm just a thorn in their sides on the issue, and they'll get the respect they want from me when they deserve it, not before! Ok, rant over, back to work.
JMR
(ESPECIALLY speaking only for myself today, even more than usual...)
"It is disappointing, but perhaps not surprising, that Supreme Court justices and other constitutional interpreters have typically fled from the hard moral judgments called for by the Ninth Amendment."
-- Steven Macedo, _The New Right v. The Constitution_ p. 7.
(Go find and read this book.)
Try e-gold - (contact me). I'm NOT e-
Scalia is far from a "strict constructionist." (A notion associated more with the jurisprudence of Bork and, to some extent, Thomas than Scalia). Indeed, he expressly eschews notions such as original intent and congressional intent -- the doctrinal view (euphemism for how he explains how he reaches some, but not all of his results -- same deal with the left by the way) is called textualism, whereby he presumes that text plainly resolves all questions, and that it is an anathema to pierce beyond the text to the "intent" of the author of a statute. (OT, but for completeness, Rhenquist's views seem to me to be neither originalist nor textualist, but rather statist in nature.)
."; Bork can do some things here Scalia simply can't), his record on the Fourth Amendment is abysmal. Since his term on the Court, he has virtually made the Fourth Amendment an obscure exception. This case is remarkable in view of this, and I look forward to carefully studying it.
At any rate, while I agree that Scalia has been somewhat solicitous of first amendment issues (textualism really doesn't permit much messing around with "Congress shall make no law . .
Actually, given the current climate involving search-and-siezures, it might. One court just ruled that a cop had no right to assume a suspect had a gun (he did), just because he stuck his hand into his pocket when the cop approached.
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Clear, Dark Skies
As for emergency situations in general, the best policy (for police or anyone else) is to do what you have to, but be prepared to explain yourself to a court of law afterward and go to jail if they don't buy your explanation.
/.
/. If the government wants us to respect the law, it should set a better example.
Now, let's watch that karma burn.
Best Slashdot Co
Movie with Roy Schneider made in about '84. With the LAPD using infrared imaging technology and Apache-like helicopters.
Best Slashdot Co
Has anyone noticed the backlash of the world against america? We got kicked off of two UN commissions. There was a huge kneejerk reaction from Europe regarding our execution of McVeigh. The same european nations are fond of calling Gee Dubya Shrubya a "Mass executioner". America is slowly becoming more and more a laughing stock - the world's comedy relief - because some of the stuff that goes on within our borders. Except most countries are too scared to publically laugh, because our collecive military phallus is so much larger than anyone elses.
Only in America could someone sue a tobacco company and win $3 billion while we sentence a 14 year old to life imprisonment for a crime he committed when he was 12 years old.
A friend of mine has pointed out that many of his overseas friends say that nobody in the US is responsible for their actions. Arguably someones mother didnt hold them enough or daddy liked to get the switch after his son a little too often, but in the end we make the decision to go ahead and do something. In other nations i've picked up, someone is more and more responsible for their actions every day, while in the US the equation for your responsibility varies on so many factors its hard to describe (Among them is your fame, riches, color, upbringing, number of warnings, if you were on springer, age (often inversely), sex (both gender and who you choose to mate with), sexuality, the music you listen to, the color or type of clothing you wear, religion and area of the country you live in).
I suppose this is only logical in view of the court's opinion that I'm not entitled to decrypt HBO's microwaves that are streaming through my house. If HBO owns what they radiate at me, then I'm entitled to privacy despite whatever IR I might be radiating through the walls of my house.
But seriously, it's good to see someone putting the brakes on the whole "if you're clean, why should you care?" mantra that the would-be big brothers keep chanting.
Of course, knowing that thermal imaging is possible just makes me want to make sure that I use foil-faced insulation in case I want to have an armed standoff with Lon Horiuchi [1] someday.
-jcr
[1] The FBI murderer of Vicki Weaver. Look it up.
The only title of honor that a tyrant can grant is "Enemy of the State."
So, if the supremes have ruled against using IR scanners, what about the thing they've been doing for a few years (ostensibly) to catch people growing pot indoors?
Rumor has it that the cops are looking for large power bills to indicate the use of indoor grow lights for large-scale pot cultivation.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Whoa, you mean you'd prefer the Constitution to mean whatever the Executive Branch thinks it means today? Or the Legislative Branch?
> The real truth is that if Antonin Scalia's Lincoln Continental was hit a by Mac truck while he was boffing Ruth Bader Ginsburg in the back seat
Thanks for that image. I really needed that. I'm off to visit goatse.cx. To numb the pain.
You seem to forget we had a little war almost 250 years ago so that the US would not be like the UK.
British subjects are so completely spied upon by the government that George Orwell's nightmare has come true. Compared to the multitude of cameras spying on you on every street corner, the t.v. detectors are insignificant.
-- Will program for bandwidth
I've had a slightly different take on this for quite a while. I believe that federal laws that make it illegal to descramble satellite or other signals like that of cell phone traffic that pass through my property are bogus. The information is there, it is on my property, I didn't ask for it to be there, I should be able to do what I want with it.
Obviously the US government does not agree with me on that issue. But, at least they are being consistent here. The heat and other non-obvious emissions from my property are not intended for law enforcement or any one else to be able to use, even if they pass through public property.
So, as long as it isn't legal to watch pirated satellite tv I think it is proportional that the cops can't watch us in our own homes.
When information is power, privacy is freedom.
If he looks through your window using a pair of spectacles, he is not violating your rights.
If he looks through your curtains using a pair of X-Ray Spex, he is violating your rights.
That's why the ruling focussed on the use of equipment not available to the general public. Surveillance with the unaided senses, or with the senses aided by everyday items such as spectacles and hearing aids, is permissible. Surveillance with high-tech devices (by the standards of the day) requires a warrant. Unfortunately the dissenting judges didn't appear to understand this distinction. From the Washington Post:
Stevens overlooked the fact that nothing can be learned about conditions inside the home by measuring signals that are independent of conditions inside the home. Any sensor that is physically located outside the home is measuring conditions outside, but those conditions may reveal an unacceptable amount of information about conditions inside (as in the case of X-Ray Spex that use x-ray levels outside the home to determine the positions of objects inside the home).--
Thermal imaging is nothing. A number of companies are being funded by the Department of Justice to develop a new type of radar that would allow police to scan somebody on a sidewalk to see if they had a gun - without their even knowing it. Details here...
It's not the convservative making a pro-privacy decision that shocks me. It's the courts making an educated decision.
I am !amused.
Although it's demonstrably false, most people do have expectations of privacy when it comes to the Internet. That's why encryption hasn't taken off nearly as much (analogy: closing the blinds on the window).
--Fesh
--Fesh
Kill -9 'em all, let root@localhost sort 'em out.
The police do not have to be blind to what your neighbors can readily see and know. "General public use" surely means the police officer can wear ordinary corrective lenses or contacts when looking at your house. High-powered telescopes are out, as such behavior is generally illegal even for private people for looking into homes. (Peeping Tom laws) The whole question turns around what is "reasonable."
The government was watching the light bulbs inside the house. It was not watching smoke emerging from the chimney, or feeling heat on the walls of the house. (As I recall, in this case, the lamps were in the attic, and the heat coming from the roof.)
It really comes down to what is reasonably considered to be in "plain view." Once you put your trash out for collection, it is, but while it is on the back porch in the trash can, it isn't. If you can see it from a window by the front door it isn't, but if you can see it with a telesecope from the church steeple 5 blocks away, it isn't.
It all comes down to the word "reasonable", in the context of home privacy. They sat 9 grandmas and grandpas down, and came out with this result. Change the facts a little, and maybe the votes are different. In this area of the law it is possible to overcomplicate it.
In general, home cases are mostly about the privacy of the home, not the needs of police. If he'd been doing this growing in the empty room above his gas station, he'd have been nailed for sure.
Pot odors would be enough to get a warrant for sure. Loud music, if a distubance of the peace, could justify him going up and knocking on the door and getting a better whiff. Heck, might justify an arrest w/o a warrant, but I don't think so.
The justification for scanning Kyllo is that he lived NEXT DOOR to somebody the cops suspected of growing pot. No noise, no smell, no bother, no justification, just random nosiness.
They could, but they normally wouldn't. It's far too risky.
Why? Because if you were growing tomatos there, or had a really snazzed out aquarium setup (especially a coral reef one) they could get a false positive. Busting into your house to find out you had nothing would garner all sorts of media attention. Worse, the judge who had been lied to would start asking some very very hard questions.
Police do not typically risk their careers over such trivial violations.
I recall reading some time ago that in certain area, the pollen count for marijuana was extremely high. In this case, establishing that type of empirical evidence may be sufficient for a judge to sign a warrant.
If I also recall, part of this case originated with much higher than normal consumption of electrcity in the guys home. That information was not private.
sarchasm: The gulf between the author of sarcastic wit and the person who doesn't get it.
Dogs are not generally considered to be technology, so that likely has an effect on such rulings. Another issue that may come into play if someone tried to use this ruling against trained dogs is the level to which your privacy is invaded in the process of finding out about illegal activity. On this issue I'd say they are totally different. Dogs don't come into your home unless there is already a warent for your home. You don't encounter them unless you are already in a public place - which is probably why they are considered just a part of the officer. More importantly, a dog trained to sniff for drugs tells the officer he thinks he smells drugs. A dog trained to sniff for guns tell the officer he thinks he smells guns. He does not observe, record or report anything else about you, even if he has the senses to know that you also have been shagging your secretary, not using deodorent and have a twelve year old's soiled panties in your pocket. Other forms of warentless search/observation that are being rejected may have more of a capicity to invade your law abiding privacy in the course of finding illegal activity. Libertarians probably don't care if a form of warentless seach/observation is finely tuned to only detect an illegal activity without infringing at all on the rest of a person's privacy, but I suspect that it will matter to most folks.
If the use of dogs hasn't been rejected before this, I doubt this ruling would be the one to revisit the issue. They really aren't that similar.
Kahuna Burger (just posted this AC, but it killed my moderation anyway, so screw that.)
...will work for Chick tracts...
Just a thought...
But America *HAS* lasted over two hundred years. That is a feat many a nation cant brag about.
Maybe things are going a little downhill and some of the flaws of our republic are glaringly obvious now yes that is true.
But it is still a nation where one person can makea difference. Obviously people like GWB can make it to the presidency. Jimmy Carter made it and he arguably was a pretty laid back southerner. The point here is that anyone can make it to the presidency still.
I just want to voice my opinon that while not perfect there isnt much better out there ya know?
America is a huge economical force. I live my day to day life with no governmental guidance, okay I know it is there but by and large im free. That says a lot. I can hop in my car and drive to the edges of our country without anyone caring. I can buy a gun and shoot it, hopefully for a long time to come. I can do all of this and hey I can still become nearly instantly rich if I was lucky.
While not perfect I don't think America has held together without some very strong glue, perhaps not everlasting perfect glue. Good stuff nonetheless. Anyways.... Just a little tired of all the unfounded political bashing going on around here. People fly off the handle complaning about GWB, the justices yadda yadda.. yet how many of you can give irrefutable proof that our president is on a course to destroy our nation and unhinge our morals and destroy the economy? Till then...
Jeremy
If we follow this to the end, the police should make available to the public all their databases, for instance those that record the "modus operandi" of criminals. If they are not allowed to use heat sensors to look inside my house, they shouldn't use computers to look into my personal habits either.
It's disturbing that the FBI tries to do this sort of thing, sure. But that's their *job*. Their job is to track down crooks, by any means the law deems acceptable. I'm no lawyer (or lawyer-wannabe), but that's a huge gray area, and if the difference in making a case (which is your job) lies in getting a piece of evidence, you're going to be willing to go quite far to get it.
This means, by the way, that it's our job to view the FBI's attempts to control surveillance technology with utmost distrust if we want to preserve our freedom.
Ray
The powers of the Federal Congress, for instance, are exhaustive; it is perfectly correct to argue that, if the authority is not granted in Article I, Section VII, the US Congress may not do it. It is not correct to argue, however, that because the right of an individual to do something is not listed in the Bill of Rights, or elsewhere in the Constitution, that individual may not do it. If this sort of argument were possible, it would easily allow judges to argue laws into existence, and circumvent the legislature.
So you're quite right to say that it's not an exhaustive list. I have the Constitutionally protected right to petition for redress of my grievances, and the Constitutionally unprotected right to floss my teeth before bedtime. The difference is that a law might legitimately be passed to prevent my flossing, if the dentists' lobby found it was losing money. :-)
I found this comment to be particularly interesting:
one of those "others" is privacy, like it or not
It is? Whether I like it or not? Because, I suppose, you *do* like it. Well, frankly, I like it too, but to the contrary, it ain't there. Should be, IMO, but is not.
Along the same line, though, which other rights do we have, whether we like them or not? The right to health insurance? The right to a fair wage? The right to affordable daycare? I've heard these things and others argued by people in high positions. There are no textual bounds on the rights the courts can concoct for me, so any distinction you make between uses of the word 'right' are bound to be contentious and easily usurped. Having abandoned the need to write down our laws, perhaps they'll give me the right to a new car; that would be nice, anyway.
Following your expansive interpretation of the Ninth, it's hard to see any real distinction between the Legislature and the Judiciary, except that the judges are more dangerous and less accountable lawmakers. It's a cheerful fantasy to think that, given such unlimited power, the Judiciary would prove to be wise and benevolent rulers, protecting our freedom. One might entertain the same hopes about kings, with as much historical grounding.
I must say as well that it seems very ironic that you'd quote Jefferson, that great advocate of judicial restraint, to support your position. A few of many quotes which give a better view of Jefferson's opinion of judicial activism:
This member of government was at first considered as the most harmless of all its organs. But it has proved that the power of declaring what law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt
The concrete nature of law is one of the greatest things we have in defense of liberty. Viewing the Ninth as a carte blanche for (especially unelected Federal) officials to make up what rights suit their tastes is not only textually unjustified, but would be practically disasterous.
A few other points:
The tax-&-spend war on (some) drugs is ... provably-racist roots in the past
So what? The Federal Constitution itself has self-evidently racist roots. We still use it.
and provably racist effects today,
Umm... what is a 'racist effect'? People may be racists; motives may be racist; effects are just effects. Even looking past your wording to what I believe you're saying here, this point is hard to justify in my view. As it happens, I would like to see most drugs legalized, and most federal drug laws struck down on 10th Amendment grounds, but that's another matter.
"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton
Which is just what I said. Or can you point out to me an occasion when the ennumeration of certain rights in the Constitution was actually used to deny or disparage others?
Statutory laws have been used many times to deny and disparage people's rights. The ennumerated rights have not. End of story.
To put it in simple terms, privacy's not there, so privacy's there.
How do you know it's there?
Really. How? Because it fits with your political theories of the proper role of government? Other people have different beliefs, and will extrapolate different rights. Can you prove that your notion of rights is the true one? I have to doubt it.
What we have in common are laws. We have enough trouble deciding what they mean, but at least they're tangible.
Your flossing example rings only-too-true these days, frankly it makes my point better than it makes yours
I disagree. I don't think it makes your case at all. The fact that a law is bad does not make that law unconstitutional. The fact that you'd like a particular law to be unconstitutional does not make that law unconstitutional either. It does not even mean they should be unconstitutional, really.
If a law is bad, that just means that that law shouldn't have been passed. Same way that if a constituional provision is bad, it just means it's a provision which shouldn't have been passed. Some bad sorts of laws we have categorically proscribed; others we haven't.
I've never said that judges should be able to argue laws into existence on the basis of the Ninth
Nor have you said what would prevent them from doing so if they chose. Sure, they do that now; you're championing a reading of the Ninth which would vastly increase their ability to do so. A broad interpretation of the Ninth inherently involves increasing judicial power. It does not inherently involve your notion of how that power should be used.
Granted, if the judges used their power wisely, as you suggest, all would be well. Is this a good strategy for us to pursue, then, to protect what liberty we have? I think it an exceedingly poor strategy.
Besides which, the Court is under no obligation to the Constitution that Congress is not under also. Why not convince Congressmen to repeal laws which violate our unwritten rights? At least we can attempt to do this without giving them more power than they already have.
Think of a ratchet that only turns one way
That's obviously what you're thinking of. Convince me it'll only turn one way. Either tell me that your reading will not increase Judicial power, or furnish me with some guarantee that it's a one-way rachet.
All of our political history has been spent in search of a one-way rachet.
The "textual bounds on the rights the courts can concoct" in the case of a 'fair wage' would be the contract clause
That's not much of a boundry. Right off the bat, it wouldn't stop federal courts from declaring 'fair wage' rights at all. And even the state courts wouldn't have to impair the obligation of contracts; they could forbid people to enter into certain sorts of contracts. Greasy? Sure. What will you do, take them to court?
To the extent that we don't have unpopular 'positions' being decreed by an unelected judiciary, it's a good thing, not a bad one.
The "So what" about the tax-&-spend drugwar's racist past is that a lot fewer people know about it (or admit it) than should
Should why? For educational purposes? Sure. But I see no way in which this bears on our political evaluation of the laws themselves.
Just look at the crack vs powder disparity of the US sentencing commission, which should upset you much more than it apparently does, since it usurps judicial determinations of leniency in many cases.
I do not, in general, approve of the ability of judges to pick and choose punishments for crimes. It is my opinion that punishments should be as objectively determined and applied as possible; I can think of few reasons why two people who break the same law should receive different punishments. If there's racism about, it's more in the fact that courts sentence blacks more harshly for the same crimes. Again, I call for reigning in the judiciary.
Go visit any US prison, look at the drug inmates, and remember that this country is about 11% black. If you see 11% black inmates, I want to know what prison it is. Typical rates are more like over 50%.
Murder rates amongst blacks are much higher than amongst whites, also. Are our murder laws racist also?
This is simply not a cogent line of reasoning. Further, to view things in such a way denies individuals the sort of personal responsibility which life in a free society requires. People break the law of their own choice, not because they are black or white. Nothing in the act of outlawing a particular drug usurps the rights of people of one race over those of another. Whatever the punishment is for crack or power cocaine, the laws do not curtail my freedom more or less than another's whatever his race.
Now it is my opinion that such laws are bad ones. If I had my way, most of these drugs would be made legal, and non-violent 'offenders' promptly released. This would, as you point out, benefit more black people than white people; but neither would my choice be a racist one for favoring blacks. Those consequences would be incidental.
The problem with seeing the Tenth in the absence of the Ninth is that Tallahassee can then take over where Washington DC left off in the oppression-game.
Indeed, state soverignty is not an unproblematic policy. It is, however, an undeniable feature of our Constitution. The fact that this may have unpalatable implications does not make it otherwise.
since the Ninth (IMO) covers recreational drug use (like it or not)
It would be hard to put the paradox of your postion more succinctly. 'In your opinion', 'like it or not'. What does this mean? I agree that it is your opinion. I do not agree with your opinion, but I agree that it is your opinion, 'like it or not'. You seem to mean also that it's the Truth, 'like it or not', as if the Truth of the Ninth Amendment were some Platonic thing-a-ma-jig, to which you had some strange congnitive access. If this is the case, please explain it.
If you think that the Ninth (or the Third, for that matter) is an inkblot, then by all means, go argue for repeal!
Why on earth would I do that? I approve of both of them. I am pleased that soldiers are not being forcibly quartered in people's houses in times of peace, and I am glad that our ennumerated rights are not being construed to deny or disparage other rights. I just don't think they're particularly significant amendments. The most obvious reading seems to support my view.
"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton
By the way, I suspect the context "amendment" in Jefferson's quote was not that of formal amendment; I was just making a lucky play on words. But the principle stands...the Constitution is a flexible document that defines itself how it may evolve through amendment. We do not need to render the Constitution meaningless by reinterpreting it to fit the fashions of the day.
"Rub her feet." -- L.L.
"Rub her feet." -- L.L.
Must be handy to be able to see in the dark, eh? Care to tell us where you went for the eyeball upgrade?
"Research is what I am doing when I don't know what I am doing." -- Wernher von Braun
This decision is A Very Good Thing for protection of our Constitutional rights.
Good that they did this, but it's disheartening that the vote was so close.
I there are situations where a warrant should be bypassed. For instance what if a gunman was held up in a house and swat was forced to make an entry because he refused to give up? Wouldn't it be useful to determine heat patterns and have a good guess as to where people were inside?
WURD!!
I actually think the original poster (I think this is very good law) was not only OK but in fact poetic. It would be different had he/she said, "I think this is a very good law". That would speak to the particular, in this case, the ruling. But as formulated, the poster speaks to the universal, that is, the practice of law itself.
Your mileage may vary and I probably deserve the "off-topic" that'll be assessed but, hey, we're not poetical enough these days.
The Mongrel Dogs Who Teach
More seriously, why not say that justices have a minimum tenure of, say, 20 years. Then, on the first day of session (or last), they roll a six-sided die. On a roll of 6, they retire at the end of the term. On average, they'd last about six years past the minimum...
OK, so it introduces some randomness into the process. Personally, I think that's a good thing.
The Mongrel Dogs Who Teach
What impact, if any, will this ruling have on the legality of scanning high school parking lots with drug dogs? Since a drug dog extends what an officer can see, much as was the case in this ruling, it seems to me that this ruling might apply. The reason I ask this is because I knew people in high school (who were NOT drug users) that were harassed because of false positives by the dogs on their cars.
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DOOR!!
I pledge allegiance to the flag...
of the Corporate States of America...
Seeing as most people dont have the means to train dogs to sniff out drugs would this ruling apply? My buddy was driving through georgia a few months back and was pulled over on I-75 with Florida plates. Dogs where called in and he was sent to jail for about $5 worth of weed (1.5 grams). Shouldt the 4th amendment protect us from this kind of harrasment?
Of course it *should*. However, the Supreme Court has in the past ruled that drug dogs are merely an extension of the officer's senses; thus, the use of a drug dog is not considered a search AT ALL - which IMO is a bunch of shit. That's just as ridiculous as saying that in the case this article refers to, the heat-sensing devices were merely an extension of the officers' own senses.
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DOOR!!
I pledge allegiance to the flag...
of the Corporate States of America...
Uh, don't you need a warrant to arrest someone? And just cause?
Nope, not really. You can be arrested at any time, but you can only be held for about 24 hours (or some such number...) before they have to release you or file charges. It's called Habeas Corpus, or literally "Present the body". Show the body (or evidence of the crime), or I get to walk.
--You will rephrase your request for me to go to hell. Goto statements are not acceptable programming constructs
So would running a web site out of your house.
Oh Damn! Ashcroft might get the idea that only pornographers run web sites out of their home.
"The words of the prophets are written on the Slashdot walls."
The New York Times article at http://www.nytimes.com/2001/06/12/national/12SEAR. html
calls into question how much Scalia and the
Court majority really understand technology.
Since it is likely that the police will not be the only ones to have such advanced snooping technology in the future, we should be concerned about the adequacy of such judicial protections.
We ought also to be concerned about how the conservatives on the court interpret the Constitution--the threat to privacy is not so much from the government and the police today as it is from corporations.
FLIR technology is used to help spot outdoor marijuana farms. because marijuana would keep its heat longer than the surrounding vegitation. It's got nothing to do with this decision, and will continue to remain legal.
My father, a semi-retired small aircraft pilot, once flew missons in Mendocino County, California, looking for marijuana. Marijuana grows greener than the surrounding vegitation, so it's possible to spot visually from the air.
144l. ph34r my 133t l3g4l 5k1lz!
The problem is the assumption that if your house is a little warmer than your neighbor's, that you must be doing something illegal and therefore they have the right to search your house. I have a big problem with that. They're free to do all the thermal imaging of my house that they want, but they can't use it as a basis for assuming I'm a criminal.
][-lifter-][
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I think this is very good law.
IANAL
IANAL either, but I know that this isn't a "very good law", it's a very good interpretation of an existing law.
I find this interesting in the context of other forms of technology survaillence, such as software back doors, etc. This ruling is probably more important than we first realize, just for that reason.
Check out the Vinny the Vampire comic strip
"It is a greater offense to steal men's labor, than their clothes"
I think it is because most of the American public does not pay attention to the actual decisions and read the justifications, they merely look at what the media tells them. And the media (at least by using the words of many liberals) has painted Scalia to be this incredible stereotype that is actually pretty far from the truth.
Well, remember that this particular fellow was going to plead guily if the search was determined to be legal.
If you are an FBI agent and you have a *really* good idea that someone is guilty of a relatively serious (by law) crime, wouldn't you feel like you should use those means that you can, especially something simple like a heat imager?
The FBI agent has no reason to expect that it will be ruled an illegal search, they are just trying to do their job and catch someone who is committing a crime (which they did do in this instance, although it may get overturned).
In the cited case, they only referred to hot spots on the walls of the house. Furthermore, the quoted decision talked about using the thermal scan as a means of collecting data that was previously only accessible via physical intrusion. However, I wonder if that would apply to a house that was actively venting heat. It seems like it would be possible to feel the heat without using technology. Additionally, you'd be able to see some heat via thermal imaging even if the device wasn't pointed at the house itself. So it strikes me as less of a see-through-walls thing. Given how close this vote was, I could potentially see the fan scenario being on the other side of the invisible dividing line.
Well, yes. If you use "conservative" in the same way that Barry Goldwater did when he wrote "The Conscience of a Conservative."
But by today's common usage, what Goldwater meant by "conservative" is now commonly referred to as "libertarian," and what is now commonly referred to as "conservative" (in the sense that Scalia is a conservative justice) is very different from that.
In short, it is surprising that a conservative justice like Scalia would uphold privacy rights. Your statement that conservatives would support privacy rights seems to be based on a confusion between the two different usages of the word "conservative."
Never take moderation advice from sigs, including this one.
Um, how are they going to know about your indoor veggies or tanning bed if they can no longer scan your home for infrared and use that to obtain a warrant? These scans-- until now-- were a major source of evidence for probable cause, since fans blowing out heat look like flame-throwers on infrared cameras. What I'd like to know is how many people convicted for drug offenses where the prosecution hinged on evidence obtained as a result of these scans will be released or offered new trials on evidence that was legally obtained.
I do not have a signature
In regards to your title...
That's the thing about Scalia that most people don't understand. Because he ruled along conservative lines a couple times, everyone assumes he's Jesse Helms' judicial equivalent, but he's not. It's not about ideology with him, it's about how the law was written. In the case of Roe v Wade, it's not that he thinks abortion is wrong, it's that he thinks that Congress, not the Supreme Court, should decide whether it's right or not. In this case, sweeping the neighborhood looking for pot growers with infrared clearly violates the 4th amendment, and so he ruled against it, even though a law-and-order-type like more radical right-wingers would approve of it.
That's why I admire him as a judge - he makes his decisions based on what the law says, not what he wishes it said. Strict constructionism.
If it ain't broke, you need more software.
I think the Supreme Court has realized one very frightening aspect of improved sensor technology: it can spy on anyone and anywhere without needing court permission. Especially now with low-cost low-level light and infrared cameras pretty much achieving military quality.
Hopefully, it will prevent things like pointing sensors at private residences on the whim.
Using these advanced sensors to operate on a court-approved surveillance of illegal drug activity is one thing, but using them to do things like trying to enforce our morals laws is quite something else.
Time to go to the store and get reflective foil and big flourescent lights.
Still, with a plan, you only get the best you can imagine. I'd always hoped for something better than that. -CP
So does this mean the cops can't use their Psychic Friends anymore?
I've hit Karma 50 and gotten a Score:5, Troll... I win!
The United States of America is a single country that is, in every measure that matters, the size of Eurpope. The Federal Government is one with teeth to keep this country with one law, and has to deal with the differences of ALL of the various subcultures that come here and grow here.
If the EU had as much power and responsibiilty as the USA's federal gov't, Europe would have just as many problems. (Yugoslavia, anyone? WWII? Hmm... when was the last time there was a war in the USA...)
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The grocery store has one that relates the UPC numbers to prices, inventory levels, etc.; and that discount tag on my keyring relates my purchases to each other, too. I know they have the information, and the computers to organize it.
- The insurance company has a database that shows the claims charged to my auto policy, and a link to a database the DMV keeps, showing the tickets I've gotten. When I applied for the policy, I signed the form releasing this information to them. Since the information is about things that happened on the streets/highways, it's not like I expect privacy.
These curtains are open.[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
#include <ianal.h>
But I read the opinion. The bright line distinction is that the police used technology that the general public does not use.
If I leave the curtains open on my windows, I have no right to expect people not to look at what can plainly be seen through them from outside my property, even through a backyard-astronomer-grade telescope, two blocks over. But I do expect to be able to speak to my wife or children and not have a TLA van train a laser on one of those windows to pick up the vibrations of our voices. They need a court order to carry out such a "search".
Now, if we apply the reasoning to laws against "hacking", we see the absurdity of a law that presumes an expectation that people won't use technology that is plainly common in (that segment of) the public. If I put a box on the net and have a daemon listening on port 80, I have no reason to bitch about people trying to access web pages from it. It's up to me to close the curtains.
This puts Lawn Forcement in a tricky situation: They can't (admit to) use snoop technology without a proper warrant and enforce laws against the general public using the same technology (by definition preventing it from use by the public). They have to choose one or the other. So don't be surprised if some currently-illegal private uses of low-grade spy stuff are legalized in the near future.
[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
But how does these emissions differ materially from, say light bouncing off people in the midst of committing some heinous crime, while in the privacy of their own backyard, or while inside their home in front of an open window ? Should that not be sufficient for law enforcement to take action ? How about sound waves emanating from the sounds of a crime in progress ? Should those sound waves be private, too ?
i don't really understand why everyone seems so shocked that scalia would be against such searches....true blue conservatives don't want the government to have power to intrude into our private lives. private property was one the basic rights this country was founded upon.
Whereof we cannot speak, thereof we must be silent. --Ludwig Wittgenstein
> Uh, don't you need a warrant to arrest someone? And just cause?
Actually, you're mixing two different concepts. The police need an arrest warrant or probable cause. If they want to go to your house and take you in, they need a warrant. If an officer observes something that, within specified rules, gives him/her cause to believe that there's a probable offense, that officer can arrest you based on that probable cause. However, once placed under arrest, you must be formally charged with a crime or released within (I think) 48 hours (legal types, please correct if necessary), as defined by habeas corpus (literally, "you have the body").
Virg
> If a cop walks up and puts his hand on my wall, and it feels
> warmer than my neighbors' walls, does this violate my rights
> under the 4th Amendment? Of course not.
Fact Check required. If an officer walks up to your house and puts his hand against it to see if it's warmer than you neighbor's house, he/she has entered your private property for the express purpose of information gathering, and that is a violation of your Fourth Amendment rights, unless said officer has a warrant to check your house temperature or has probable cause to believe it should be warmer (which has to be compelling, like smoke pouring out a window; a "hunch" isn't good enough).
Not much to discuss here.
Virg
> There's no difference between light and heat radition, and
> there should be no difference in using such tools.
I fully agree. So does the Supreme Court. They stated that the rules of appropriate search must apply to thermal radiation measurements in the same way they apply to visible light. In the same way they can't plant a camera outside your house without a warrant, they can't monitor your thermal emissions without a warrant.
Virg
I suspect that the most important aspect of this decision will not be in home searches, but in the precidents it sets for future cases about illegal search and seizure of data. Hands off my PC, peachfuzz...
Now, that being said, it's surprisingly easy for cops to get a warrant for anything they want to do, at least in Texas. This will only protect people from 'sweeps'. If the cops decided you're growing pot in the back room, they'll get the warrant with little or no effort, even if you're growing normal, non-skunky veggies, or have a tanning bed.
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
You are right and I owe you (and others) and apology for painting with too wide a brush. Your reply was intelligent, informative, and thought-provoking. Please accept my apologies.
Here is the transcript of the oral argument:m ent_transcripts/99-8508.pdf
http://www.supremecourtus.gov/oral_arguments/argu
And this is the decision:5 08.pdf
http://www.supremecourtus.gov/opinions/00pdf/99-8
I find the oral argument especially compelling as an example of reasoned arguments taking shape.
"eh? then why are radar guns (for detecting the speed of a vehicle) not "illegal search and seizure"?
"
I do agree that this COULD be a 4th Amendment violation, but getting it heard by a judge would be unlikely. Most traffic courts are there just to collect your money anyway (as I found out in an Ohio one once when falsely given a speeding ticket (the officer clocked the car that was passing me, then pulled us both over) even when I provided evidence that cast grave doubt on the officer's claim.
Biggest problems with this are states like VA and the DC who outlaw radar/laser detectors.
How, Constitutionally can an agent of the State search you at all and yet deny you the right to detect it?
It's great that this search with hi-tech imagers was ruled illegal, because you KNOW the next step would have been laws making the manufacture or ownership of DETECTION EQUIPMENT to detect such scans illegal.
=== The price of freedom is eternal vigilance
Does anyone else find it disturbing that the FBI always seems so eager to do "this sort of thing" (e.g. Carnivore)? What motivates these people? They are people, by the way. The FBI is usually referred to as an entity separate from any individual, but it boils down to some people trying to spy on their fellow citizens.
If your point of view differs from mine, try thinking about this comment as if it were sarcastic.
Agreed. The Supremes have made many bad decisions in 200+ years and thousands of cases--but I don't remember _any_ case where they made a bad decision that most politicians at that time wouldn't have done the same or worse. It's not perfect, but what else are you going to use as the ultimate authority, computers?
Good suggestion about staggered terms, but one problem. If they can get a second term, that subjects first-termers to political pressures. If retirement is mandatory after one term, then when a judge dies after 32 years, that leaves his replacement in a bad position (3 years and out). If you give the replacement a 35 year term starting from when he begins, eventually the system will get out of sync again...
Let me quote you a quote: "Unlike some drugs, cocaine is not physiologically addicting."
Where did I come up with this horrendous subversive lie? http://www.ussc.gov. Let's go on from the same source, shall we?
Examples of drugs that cause physiological dependence include:
Cocaine is psychologically addicting, as are most drugs. The big danger with cocaine is that it doesn't limit its intake by inducing nausea like alcohol, nicotine and caffiene, all of which are toxic. However, in dilute form, as in early Coca Cola recipies, the dosage is limited, just as caffiene in coffee is.
Even after having the distinction pointed out to you, you use binge abuse as evidence that the abused substance is inherently dangerous. Alcohol and aspirin are just as dangerous as cocaine when abused to the same degree. Caffiene or nicotine, taken in pure form, would kill you at lower dosages than cocaine.
Please try and understand that the problem isn't the drug, it's the binge abuse, a pattern that is dictated by the illegality. The illegality also causes the inflated cost, which encourages crime.
I accept that this is OT, but I'm happy to burn karma on this one.
If you were blocking sigs, you wouldn't have to read this.
I heard about this on NPR yesterday. They read from the text of Scalia's writeup. He laid out a general rule for future cases involving the use of technology to spy into private homes. He said that a warrant is needed for any surveillance of a private home using technology which is not widely available to the public. For instance, it is acceptable for cops to use binoculars or a searchlight to peer thru your windows, without a warrant. Some issues this "widely available" clause brings up: What is considered widely available? Just that some private citizen can buy it? Or that some percentage of the publlic can afford? If "widely available" just means that a private citizen can buy it, could not authorities instruct the tech manufacturers to make it available to the public at ridiculous prices, so that authorities don't need a warrant, while keeping the tech out of the hands of almost all citizens? How does this ruling affect the use of advanced, secret programs like Carnivore to spy on our computers? Carnivore spies on traffic thru an ISP, so it seems like it's not spying on the PC in the target's home; but the IR imager spies on the IR radiation in the air near the house; if you can't use IR tech from across the street from a house, to spy on IR radiation which emanates from the walls of a house without a warrant, can you use Carnivore or other similar programs from the ISP to spy on packets emanating from the NIC in your home PC without a warrant? Just some thoughts. Feel free to discuss them.
Have you seen the size of an infrared scanner? That's a lot of lube..
"I see. The fact that you...`can't explain'.. explains everything."
Clearly this was an excellent decision by the Supreme Court. The Fourth Amendment to the Constitution isn't very hard to understand, yet our law enforcement agencies keep breaking the rules set forth by it.
In this case the thermal imager was being used to detect heat from lamps used to cultivate marijuana. The worst part is that our government shouldn't be telling us that we cannot use marijuana how we like. The only reason our government is in place is to protect us from outside harm and others in this country. Nowhere does it say that it should be protecting us from ourselves. Laws banning the home use of marijuana and other drugs should be repealed. It's clear the drugs do not cause violence, and that drug LAWS do cause violence.
Not only are these laws causing violence now, but they're also causing the government to pass more and more laws that allow law enforcement to invade our privacy and strip us of our rights. There are many other high tech devices out there in use that haven't been ruled against yet. We should consider this a victory, but don't celebrate yet because there's still a long fight ahead of us.
Hmmmm...
I know they have used abnormal power consumption as an indicator of pot farms (all those grow lights and hydroponics).
So, if you factor in power consumption and heat signature, a server farm might look a lot like a pot farm.
WORD TO THE WISE: If you are growing illegal drugs in you house, you should buy at least a T1 and connect it to your "garden." That way you can claim you are just running an internet business. And you have the added bounus of being able to FINGER the plants to see how each is doing!
______
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Once: you're a philosopher. Twice: a pervert.
The courts are doing something to protect our rights. This was wonderful news to wake up to. I remember reading about the guy who was arrested for growing pot in his house based on evidence gathered with heat-sensing technology (this item was probably about that - haven't read it yet)... and I remember the sinking, sad, sickening feeling that came with it. Now this - our freedom from unwarranted searches and seizures, and perhaps even our protection from testifying against ourselves (nevermind mandatory breathalizers etc..) may be getting a bit of real protection. I wish I could say that I hope things get better - but I suspect the best I can realistically expect is for the damage to our liberties to slow down a bit. As I've heard others say, I love my country and the ideas it was founded upon - but I fear my government and the socialistic trend it is following. Speaking of, I admire Timothy McVeigh - what he did was wrong, but he at least understood that there was something wrong with America. I am glad he died, I am glad a monster is removed from society - but I must admire his recognition of the failures of government and his resolve, his confident and solid worldview (yes, it was wrong, but at least he took a stand, at least he bit the bullet, at least he had the guts to do what he thought was right). Monster, bastard, hell-bound (if there was a hell, that is, which there's not) freak - but still a man of conviction, of independent thought and iron will. If there were men with that kind of inner strength, and the right ideas in their head, the world might be a much different place.
think for yourself, you won't like the results if others do it for you.
"This could lead to arresting people randomly."
Uh, don't you need a warrant to arrest someone? And just cause? I seem to recall that being in the Constitution somewhere...
I'm the stranger...posting to
George Washington
Thomas Jefferson
John Adams
Thousands of other American Revolutionaries
Susan B. Anthony
Mahatma Ghandi
Jesus of Nazareth
Dr. Martin Luther King, Jr.
Phillip Zimmerman
Rosa Parks
Forgive me for forgetting that our purpose as human beings is to worship and revere the arbitrarily-chosen laws in the geographic region we happen to be born into.
"What is the sound of one belly slapping?"
The specific technology, Forward Looking Infrared Radar, has been successfully used to bust thousands of marijuana growing operations over the last few decades. These people's lives were ruined: they were arrested, imprisoned, fined, and subjected to forfeiture of their assets. Between the fines and the asset forfeiture, police nationwide have bought more helicopters, tactical weapons, body armor, dogs, and other Rambo toys--all to use against Americans in the War on (Some) Drugs.
When a law or investigative procedure is found to violate basic Constitutional rights, the ruling should be applied retroactively all the way back to the enactment of said law or investigative procedure. Anyone caught by FLIR should have their fines reimbursed, criminal record expunged, and their assets returned--including all of the plants they were growing, down to the specific strain and height. What sucks is that this won't happen--the case just gets remanded to the lower court, who can decide in this one case whether there was any other evidence available to justify a warrantless search. Anybody who wants this applied to their case will have to hire an expensive lawyer: a ridiculous proposition for someone who no longer has a home to mortgage because it was seized.
This WO(S)D has been nothing but a gateway to a full-blown police state. I'm hoping that this ruling marks the end of the "But Won't Someone Think of the Children???" era that characterized the 80's and 90's and launches the "But Won't Someone Think of the Constitution???" era.
"What is the sound of one belly slapping?"
the same supreme court panel also voted 8-to-1 in favor of anal probing as a means of gathering evidence. personally, i'll take the infrared scanning any day.
Consider that listening devices are not legal. This is simply an extension of it into visual devices. Excellent that they did make the right decision though. (for once)
-- Azaroth
Human logic: 1) I can't so you mustn't. 2) I can but you mustn't.
"Yet all they've done here is use a device to percieve the radiation emitted from a surface, very little different from taking a picture of it, or looking at it."
No, the important thing here is that they can observe you in your home, doing whatever private things you wish to do, without a warrant to do so. Looking at your walls is unimportant since they are out in the public view. Feeling heat on the walls is irrelevant because unless you can deduce the shape and signature of the object emitting the heat, all you know is that something is there. But by observing the radiation emitted from your house they can come to any number of conclusions based on the number of objects "seen," their movement, their shape, their actual heat intensity, etc. This is no different, IMHO, than being required to ask a judge for a wiretap.
"All mankind is at the mercy of a handful of neurotics". - Norman Douglas