Does Cheap Tech Undermine Legal Privacy Protections? 282
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?"
Re:"Thermal imaging devices" are not $50-150. (Score:2, Interesting)
I remember demoing at a trade show, and telling a girl there she was really hot. Literally. Unfortunately she wasn't particularly "hot" in the other sense, so I didn't ask for her number.
Bogus headline (Score:4, Interesting)
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...
Re:I don't think that was the reason for the rulin (Score:5, Interesting)
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".
Constitutionally Speaking (Score:4, Interesting)
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.
Re:This is completely different (Score:2, Interesting)
Should the availability of the tech matter or should the courts actually use some sort of sound judgement about how intrusive authorities can be?
Yes. If you can't expect the general public not to do something, like looking into your home with cheap thermal imagers (hypothetically), then you can't expect the government not to. That is, if the public can do something, so can the government.
The availability of the technology is not relevant to whether or not the government is stepping on your rights
Yes it is. If there aren't any cheap thermal imagers, the general public doesn't have access to cheap thermal imagers. Therefore, you have a reasonable expectation of privacy from thermal imagers. Once thermal imagers become cheap for mass public consumption, you have two options: you either do nothing, and give up your reasonable expectation of privacy, or put up some sort of thermal barrier so that the public cannot view the contents of your home.