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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?"
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Does Cheap Tech Undermine Legal Privacy Protections?

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  • by Anonymous Coward on Tuesday January 05, 2010 @01:51PM (#30657676)

    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.


  • Cheap or Invasive? (Score:4, Insightful)

    by Herkum01 ( 592704 ) on Tuesday January 05, 2010 @01:51PM (#30657684)

    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.

  • by capt.Hij ( 318203 ) on Tuesday January 05, 2010 @01:56PM (#30657792) Homepage Journal
    The point is should the cost matter? Someday that vanadium oxide microbolometer may be easier to obtain and be in more general use. Should the availability of the tech matter or should the courts actually use some sort of sound judgement about how intrusive authorities can be? The availability of the technology is not relevant to whether or not the government is stepping on your rights. The technology to break into your house has always been cheap and available yet for some reason surveillance is treated differently.
  • Scanning ethics (Score:3, Insightful)

    by girlintraining ( 1395911 ) on Tuesday January 05, 2010 @02:05PM (#30657948)

    In light of that, Kerr asks, is the Supreme Court's ruling still sound?"

    Anything reasonably available to you should be available to the police. Thermal imaging scanners, however cheap they become, will never be a commonly available item. Therefore, a warrant should be required because what they're looking for is not in plain sight. Think of telescoping lens and using infra-red to see through drapes to spy on people having sex. In this case, though the technology is readily available, the average person wouldn't do this. There is therefore a reasonable expectation of privacy that people aren't doing this for lawful purposes. Having sex in front of the bay windows of your house, during the day, without pulling the drapes back -- a passerby could see that, and therefore the police can bust you for indecent exposure.

  • Stupid Question (Score:5, Insightful)

    by Jaysyn ( 203771 ) on Tuesday January 05, 2010 @02:11PM (#30658046) Homepage Journal

    Even if they did it with telepaths or clarivoyants it would still be an invasion of privacy.

  • by HeckRuler ( 1369601 ) on Tuesday January 05, 2010 @02:14PM (#30658086)
    This kind of raises the question of why the cops needed a $3K device when they really just wanted to know when a roof was >120F. Sure, the thermal imager is more fun to play with, but a $30 kitchen tool, you know the kind with the targeting laser, would work just about as well for a hundredth of the cost. I think our generals use the same logic as these guys.
  • by Anonymous Coward on Tuesday January 05, 2010 @02:22PM (#30658192)

    That's because when they do it to you without your consent, it's okay.

    When you do it to yourself of your own free will, it's a crime.

  • Re:Not the same. (Score:2, Insightful)

    by Surt ( 22457 ) on Tuesday January 05, 2010 @02:23PM (#30658214) Homepage Journal

    I foresee this being the next 3 wolf moon t-shirt.

  • Low Tech? (Score:3, Insightful)

    by rickb928 ( 945187 ) on Tuesday January 05, 2010 @02:26PM (#30658262) Homepage Journal

    An extension ladder up the side of the house to look into the attic windows is pretty low-tech.

    It's not just the 'low-tech' issue. It's about police power, Fourth Amendment, and due process.

    Pulling a visitor out of their car and interrrogating them about what is going on inside the house is pretty low-tech also. It's just intrusive. Non-intrusive tech is subject to reasonable limits, just like high-tech etc.

  • by bmajik ( 96670 ) <> on Tuesday January 05, 2010 @02:28PM (#30658288) Homepage Journal

    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.

  • by Smallpond ( 221300 ) on Tuesday January 05, 2010 @02:35PM (#30658380) Homepage Journal

    Because "this building is warmer than the neighbors" doesn't give them probable cause, but "this shape looks like a bank of warming lights" does.

    Besides, they pay of the cost on the first few auto and home seizures.

  • Money Misspent (Score:1, Insightful)

    by Anonymous Coward on Tuesday January 05, 2010 @03:12PM (#30658928)

    Make pot legal. Then the police can stop wasting tax money enforcing unjust laws against victimless crimes, and we can tax the stuff to fund better security for our schools to ensure that the stuff stops falling into the hands of our children.

  • by DJGrahamJ ( 589019 ) on Tuesday January 05, 2010 @03:19PM (#30658988)
    What if glasses that could see though any matter became common place, would that mean we should never have a reasonable expectation of privacy? No way. Any surveillance that requires more than human eyes and a visible light source should have a warrant IMO.
  • by arth1 ( 260657 ) on Tuesday January 05, 2010 @03:27PM (#30659096) Homepage Journal

    Then they should have probable cause in the first place.
    To search (which include peeping at anything they don't show you[*]) presumably innocents in the HOPE of catching someone doing something wrong is expressly prohibited by the constitution.

    [*] The right of a cop to look into your windows is there only because you yourself get to choose whether to have your curtains drawn or not. In the case of the temperature, it's not a deliberate choice you make, so any peeping must be considered a search. Which requires a warrant.

    Nothing to see here, unless you have a warrant, please move on.

  • heat == marijuana? (Score:3, Insightful)

    by rhewt ( 649974 ) on Tuesday January 05, 2010 @03:39PM (#30659254) Homepage Journal
    Even if they could use a thermal imaging device, how would that solidify their accusations exactly?
  • by Tobor the Eighth Man ( 13061 ) on Tuesday January 05, 2010 @03:40PM (#30659268)

    Mod parent up! All these other posts are acting like having to get a warrant means police can't do it.

    Warrants are routinely obtained for all sorts of things on relatively little evidence. If the police want to spy on someone with thermal cameras, let 'em convince a judge that it's reasonable to think you may be doing something illegal. That's what the warrant process is there for--trying to circumvent it defeats the purpose.

  • by toiletsalmon ( 309546 ) on Tuesday January 05, 2010 @03:51PM (#30659418) Journal

    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...

  • by TomRC ( 231027 ) on Tuesday January 05, 2010 @04:46PM (#30660266)

    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.

  • Re:Try $14,000 (Score:3, Insightful)

    by Sabriel ( 134364 ) on Tuesday January 05, 2010 @09:59PM (#30664258)
    How good is it at seeing inside walls? Because - while $14K is still way too expensive unless you're a big firm - being able to see the wiring/plumbing/vermin inside walls would be fantastic for a lot of tradespeople.
  • by Anonymous Coward on Tuesday January 05, 2010 @10:04PM (#30664292)

    Look, if it's that easy to detect the heat coming off of a grow-op, then the growers should be out there detecting and stopping the leaks before the police do.

    I'm all in favor of privacy and civil liberties. But I also notice that the police routinely use things like helicopters and phone taps that the average citizen doesn't have access to. So it seems like maybe it was a bogus, or overly optimistic, ruling.

    I think that the police should be required to be open and above-board about their methods. They should publicize the fact that they are using thermal imaging devices to scan for suspicious heat in the community. But banning their use outright is silly.

    Even a very distinct outline of a row of high intensity discharge lights does not indicate that illegal plants are being grown. The only thing it indicates is that someone has a row of high intensity discharge lights. I could be growing any number of exotic plants or just ANYTHING I WANT TO GROW IN MY HOUSE BECAUSE I DAMN WELL FEEL LIKE IT. I could like very bright spaces.

    I'm sick of this abnormality = illegality bullshit.

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