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Does Cheap Tech Undermine Legal Privacy Protections?
bfwebster writes "Orin Kerr, a George Washington University law professor who focuses on legal issues regarding information technology (I own a copy of his book Computer Crime Law) raises an interesting issue about a 2001 Supreme Court decision (Kyllo v. United States) that prohibited police from using a thermal imaging device on a private home without a warrant. (The police were trying to detect excess heat coming from the roof of a garage, as an indication of lamps being used to grow marijuana inside.) The Court made its decision back in 2001 because thermal imaging devices were 'not in general use' and therefore represented a technology that required a warrant. However, Kerr points out that anyone can now buy such thermal imaging devices for $50 to $150 from Amazon, and that they're advertised as a means of detecting thermal leakage from your home. In light of that, Kerr asks, is the Supreme Court's ruling still sound?"
The linked item is not an imager, it's a glorified thermometer. I wish you could get a thermal imager for cheap -- last I checked, they still started in the $3-4K range.
The imager police where using was just that - an imager. This is just a cheap infrared thermometer. It's like comparing a motion sensor to a video camera, or your finger to your eyes.
I literally laughed out loud when this post insinuated that a $150 thermometer was equivalent to a $5000+ vanadium oxide microbolometer.
Dumb.
I think the question should be, how invasive and how common the technology should determine whether it can be used. Should a telescoping microphone be legal simply because it be can bought for $20 or because everyone has one? If everyone has one, then no one should expect to have privacy from it. If not, they only a specialist would have them, and special equipment would require special permissions, AKA a warrant.
Thermal cameras used by the cops still cost quite a bit. We had one in the Heat & Mass lab in college and you had to give up your drivers license and student ID to borrow it out, and you couldn't even leave the building.
The cheap devices on Amazon just look like non-contact temp sensors with some fancy electronics. If someone was trying to snoop around my house with one of the devices you linked to they'd probably be close enough to hit with a baseball bat.
This is the cheapest I could find however something like this is probably required to do what you're afraid of.
Still a valid question, but the 'cheap technology' isn't quite there yet.
The correct heading would've been: "Does Cheap Tech Ease Police Work?" And the answer is, yes it does. The court didn't declare marijuana-growing legal — it just said, that when the cops need to go out of their way to get information, they need a warrant. Once the devices, that were rare in 2000, become common place enough for each cruiser to have one, the information could be considered "in plain view" and no warrant is needed.
Even more generally, the cheap tech makes things hitherto impossible or very hard, possible or even easy. If, indeed, the our concerns were really for privacy (rather than for obstructing justice, when it goes after crimes we feel shouldn't be crimes), we should worry about anyone using these and similar devices to, for example, "see through" walls, curtains, or bushes. If you can use them to take a picture of a rabbit in the night, your neighbor — or some "reality show" — can film you rolling in hay...
Indeed, some time ago Animal Planet was presenting wonderful movies of African fauna. They were shot at night in such darkness, that the cats themselves couldn't see the cameras or each other. But the cameras saw them, and the picture was quite good... Roll forward a few years, and sponsorship by a heavy-weight like Mutual of Omaha will no longer be necessary to obtain such equipment...
In Soviet Washington the swamp drains you.
Even if they did it with telepaths or clarivoyants it would still be an invasion of privacy.
There is a war going on for your mind.
You thought wrong... If something is "in plain view", then police needs no warrant to follow-up. For an obvious example, if a cop hears a shot inside a house, he needs no warrant to start investigating. Further, if the window/curtains are open and he can see a crime, his observations can (and should!) be used in court.
Similarly, if we the humans were equipped to detect infra-red light, the police wouldn't have had no problem that's described in the write-up. Arguably, the humans are so equipped now — and that's, what the article is about...
For example, 100 years ago we didn't really have electric lights and thus could barely see at night — without street lights. So, to notice something in your yard at night back then, the cops needed a warrant (for they had to drag some serious lightning equipment). Today they'll see it in their cruiser's headlights driving by and it is thus "in plain view".
In Soviet Washington the swamp drains you.
You're right dude... I'll take it off.
In light of that, Kerr asks, is the Supreme Court's ruling still sound?
IMO, the matter of the court's ruling on that basis is irrelevant.
If I have a briefcase full of documents and leave it on the table in the coffeeshop while I use the bathroom, a police officer is not allowed to open it and look inside without a warrant. Certainly "opening a briefcase" is technology in common use. The Supreme Court's ruling may not be valid, but the 4th amendment still stands. While unavailability of technology may be an additional limitation on government authority, the availability of technology does not grant the government new authority which it does not have under The Constitution.
Of course, this hangs on my personal and deeply held belief that "unreasonable" must be interpreted in the spirit in which it was intended in the minds of the liberty-oriented thinkers who wrote it.
Stop-Prism.org: Opt Out of Surveillance
The Supreme Court of Canada took it in another direction in R. v. Tessling (Wikipedia summary). Basically the SCC asked whether there was a significant privacy interest in images that don't provide any precise information on what's happening inside the home. This speaks to both points. The first is that the SCC determined that those images are not particularly invasive. You can see heat patterns, but no specific activities. The second point here is the emphasis on the subject matter of the image, and not whether the technology to produce that image is widely available.
Thus with the SCC's stance, it seems that if there exists some technology that can look through the walls of a home and see precise activity, then that technology would at least require a warrant.
In any event, I don't know if Kyllo's decision was that weak in the first place as to hinge on the question of whether a technology is widely/cheaply available. A much more important aspect of Kyllo seems to be the emphasis put on the "sanctity of the home". If the Court hears a similar case in the future, I'm positive that the sanctity of the home question will play a huge role in the decision.
If the police are using something stronger than bi-focals to look at your house, they ought to have a warrant. That means they ought to have reasonable suspicion that a _specific_ crime is being committed.
My opinions are my own, and do not necessarily represent those of my employer.
we have this fancy thermal imager that can see through walls like they arn't there. It detects such subtle changes in temperature you can see the entire inside of the house with excellent clarity from a few hundred feet away. Mind you owning this device is illegal because of the potential for abuse we have exception because it is used for fire dept / search & rescue. But in the wrong hands its a scary device like cops cruising the neighbourhood mind you cops tend to break the law more than your average citizen especially when it comes to traffic violations ( one of our local cops constantly brags about taking 10 min to drive what should be 25 min at the speed limit just to go to the next town for a coffee)
Even if they could use a thermal imaging device, how would that solidify their accusations exactly?
In plain view means just that, in plain view. Even using your analogy of headlights on a police cruiser, you still can't use headlights to peer into someone's house THROUGH THE WALL or ROOF.
The spirit of the law is that people have the right to do just about whatever they want in their house, behind closed doors/walls without being subject to a "casual inspection" by the police. Sure, it allows some people to do "bad things" without getting caught sometimes, but more importantly, it keeps the government from being able to micromanage your daily life.
Sure, because of "global terror" and a bunch of other scary words, people are more readily giving up their personal rights for "safety", but that doesn't automatically make it a good/smart thing.
Basically, if it isn't grossly obvious that you're doing something illegal, the Police should leave you the hell alone and go find someone who IS breaking the law in public. In my experience, that's not a very difficult thing to find...
Sadly, it does.
There needs to be a "bright line" on this - that line should be "Any use of sensing devices beyond that of an unaugmented human, constitutes an illegal search."
That would include remote thermal measuring devices, setting up cameras to watch a house, use of sound amplification, etc.
For that matter, I would prefer that a warrant be required even to post an officer to watch continuously - i.e. the bright line should be "no more than the equivalent of casual, unaugmented observation". So a police officer could drive by a location, but setting up surveillance would require a warrant. But I don't expect we're likely to see that sort of roll-back of surveillance powers.