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Does Cheap Tech Undermine Legal Privacy Protections? 282

Posted by timothy
from the let's-ask-professor-shellenberger dept.
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?"
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Does Cheap Tech Undermine Legal Privacy Protections?

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  • by jeffb (2.718) (1189693) on Tuesday January 05, 2010 @01:50PM (#30657660)

    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.

  • Not the same. (Score:5, Informative)

    by 0100010001010011 (652467) on Tuesday January 05, 2010 @01:52PM (#30657702)

    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 [amazon.com] however something like this [amazon.com] is probably required to do what you're afraid of.

    Still a valid question, but the 'cheap technology' isn't quite there yet.

  • by sznupi (719324) on Tuesday January 05, 2010 @02:17PM (#30658128) Homepage

    I had the impression people prosecuting minors sending among themselves just naked pics don't seem to think so...

  • by SpeedyDX (1014595) <speedyphoenix AT gmail DOT com> on Tuesday January 05, 2010 @02:25PM (#30658242)

    The Supreme Court of Canada took it in another direction in R. v. Tessling [umontreal.ca] (Wikipedia summary [wikipedia.org]). 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.

  • Try $14,000 (Score:4, Informative)

    by JoshDD (1713044) on Tuesday January 05, 2010 @02:42PM (#30658472)
    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)
  • Re:Growing Orchids (Score:4, Informative)

    by z80kid (711852) on Tuesday January 05, 2010 @04:04PM (#30659602)
    So, growing orchids gives the cops the right to just bust your garage door?

    Sadly, it does. [dallasnews.com]

  • by bdlarkin (535818) on Tuesday January 05, 2010 @04:13PM (#30659718)
    Don't bet on the cop not looking at your documents anyway. In the interest of "security".

    http://volokh.com/2009/11/04/the-deputy-who-helped-himself-to-the-defense-attorneys-casefile [volokh.com]

    The video shows a criminal court hearing in which a deputy assigned to court security walks over to the defense attorney’s papers on the counsel table and starts to look at the papers. Eventually he reaches down and pulls out a document from the stack of papers, passes it off to another deputy, and then the other deputy walks away with it.

    At least in some jurisdictions....

  • Re:Money Misspent (Score:1, Informative)

    by Anonymous Coward on Tuesday January 05, 2010 @05:06PM (#30660606)
    Your suggestion to use the money currently spent on unneeded drug enforcement on needed drug enforcement is interesting since prisons and law enforcement agencies receive hundreds of millions from the government to fund such projects and would suffer horribly if they were to lose such funding. Unfortunately things aren't that simple or we probably wouldn't be in the mess that we still are. I'm guessing that at least a small part of the problem with your scenario (looking past the fact that pretty much every politician in the U.S. would have to admit that they've been *WRONG* for the past 80 years) is that cops and prison guards don't *want* to go from bashing in doors and faces to handing out lollipops to 3rd graders.

    The fact that they once fought for the right to use these thermal imagers is proof of exactly that. They want high level gear so they can go run 25-man raids. Certainly some of the /. community can relate to that.

    Things are very slowly getting better with more and more states passing laws to allow the use of medical marijuana and are also lessening the penalties for simple possession. The Seattle prosecutor's office recently stopped filing charges for possession altogether since it was such a waste of their time and now the incoming mayor wants to legalize and regulate pot [mpp.org]. This is far from the only instance of local agencies stepping in to say "Enough of this nonsense." Anyone who keeps up with weed-related news of course also knows about the memo sent to the DEA earlier this year strongly urging them to stop going after medical marijuana users. I sincerely hope that this movement keeps spreading as it appears to be. Maybe in 10 years we'll finally have full federal and state legalization. Unfortunately a lot of people were hoping for the same thing back in 1970 and yet here we are...

    As a side note, anyone who wants to learn the basic history and current status of the marijuana community should really watch The Union [wikipedia.org]. It's an excellent documentary.

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