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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
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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-
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?
I've hit Karma 50 and gotten a Score:5, Troll... I win!
#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.
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 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."
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.
It's the _expectation_ of privacy. (Most) people understand sight - you put them in a situation, and they immediately understand where they can be seen, where they can't, etc; they 'know' where they are private to do what they want. Ditto with hearing. If I'm in an area where I can't be seen by the human eye, and I can't be heard by the human ear, I have a certain expectation that that area is private. (Most) people do not worry about infrared signatures, parabolic hearing devices, or the like, and so use of those tends to violate the expectation people have to privacy.
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.