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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."
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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.
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.
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
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
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 . .
Movie with Roy Schneider made in about '84. With the LAPD using infrared imaging technology and Apache-like helicopters.
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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).
This scanner you're referring to does NOT work "50 feet away".
www.cnn.com travel news 2000-08-21
I couldn't find a larger image than the one in this CNN story; you get body shape with ghostly clothing over it. The subject has to stand on a platform inches away from the scanner. It's to be used where strip-searches would otherwise be warranted, or in high-profile airport situations.
[
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).--
Good that they did this, but it's disheartening that the vote was so close.
So does this mean the cops can't use their Psychic Friends anymore?
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#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.
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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
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!
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.
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!
______
______
Once: you're a philosopher. Twice: a pervert.
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.