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Technology: Privacy's Best Friend and Worst Enemy

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  1. How Technology Can Substitute for Police Investigation
  2. People Who Live in Glass Houses...
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In this commentary, Bob Grogan discusses recently proposed anti-terrorism legislation and the threat that Americans feel at home - not at our borders, and not by foreign powers, but by our own legal authorities and their technologies of intrusion.
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Recently an incredibly important case before the Supreme Court passed, as they often do, with little acknowledgement or fanfare. The case of Kyllo v. United States was probably one of the most significant cases relating to the struggle between technology and the preservation of privacy in this century.

The beauty of the Supreme Court, as I have always seen it, is its unending need to take seemingly banal, ordinary matters of jurisprudence and recognize the underlying Constitutional importance. Quite frankly, it's the only institution left relatively untarnished by greed, lobbyists, and cynicism. Other kids wanted to be astronauts—I still want to be a Supreme Court justice, or even just an intern.

Before getting into the facts of the case, I would like to dispense with the election folly that transpired last year by saying that the court has been in far greater disfavor in the past—namely, the Warren court's attempts at establishing equality and civil rights. Sometimes what is correct is far from politic.

Enough of that.

How Technology Can Substitute for Police Investigation

The facts in the case of Kyllo were this: A suspected grower of marijuana in the state of Oregon was under investigation. The suspect's daughter lived with the estranged wife of Danny Kyllo. Kyllo's wife had previously been involved in criminal drug possession. In spite of their estrangement, the police used this flimsy pretext as cause to expand the investigation to include Kyllo.

The first stop was Portland Gas and Electric. In court documents, it was determined that not only did the police obtain graphs of Kyllo's energy consumption relative to surrounding units, but they actually manipulated those graphs to make a minor variation into a major one. Lies, damned lies, statistics.

Still not to the crux of the matter. Having only the two-year-old drug conviction of his estranged wife, a slightly higher electricity bill, and triple—yes, triple—hearsay evidence was not sufficient grounds for a judge to issue a warrant against this suspect—even though the police failed to mention the estrangement.

Enter thermal imaging. The ability to scan objects outside the visible spectrum has proven useful for a great many things. In the military, it allows for nighttime engagement through the use of night-vision goggles. In police helicopters, Forward-Looking InfraRed (FLIR) has allowed for improved air support in tracking suspects and maintaining police safety. In many systems, a pilot can tell if a suspect has a gun by the temperature variation of the metal from body heat. Therein lies the problem.

A national guardsman aimed his thermal gear at the outside of the home of Danny Kyllo. The garage wall and roof were a splotchy white color, indicating the presence of a heat source within, consistent with growing lamps used in the cultivation of marijuana—or perhaps a combination washer and dryer.

Trust me, I'm the last person you'll see wearing a hemp shirt at the latest FreeFest in Chicago, but it seems like some law-enforcement priorities were a little askew.

Continuing with unbiased facts of the case: Based on this thermal scan and the aforementioned (proven) misstatements of fact, officers arrived 11 days later to seize all plants, equipment, and Kyllos at the residence.

After losing in initial hearings to suppress both the imaging evidence and the misleading testimony of officers used to secure the warrant, Kyllo entered a conditional plea of guilty, reserving the right of appeal. Further hoops—including the untimely retirement of an ailing judge on the appeals panel—found the case before the U.S. Supreme Court.

Despite the easy interpretation of this case as just another victory in the "War on Drugs," the highest court in the land saw an inherent Fourth Amendment issue relating to the use of technology to circumvent protections against unlawful search and seizure. A number of important and relevant precedents were available for both sides. Issues in play in this case related to the enhancement of human senses, privacy expectations when your window is open, and even the comparison of heat escaping past your insulation to garbage that you discard by the side of the road.

The arguments for the plaintiff boiled down to the assertion that simply monitoring the outside walls didn't constitute a search of the private residence. Further, they claimed, because Kyllo took no special effort to conceal the heat escaping, he had no expectation that the fact would remain private. Finally, they claimed that the technology was crude enough that no specific personal information about the home or its occupants was revealed—only a gross representation of its hot zones.

An unusual coalition of justices found these arguments compelling. Stephens, O'Conner, Kennedy, and Rehnquist found "a distinction of constitutional magnitude between 'through-the-wall' surveillance that gives the observer or listener direct access to information in a private area, on the one hand, and the thought processes used to draw inferences from information in the public domain, on the other hand." In other words, a microphone that allowed someone outside the residence to hear the conversation would be invasive, whereas one that only allowed detection of a conversation was the difference between a search and an observation.

In the majority opinion, Justices Scalia, Thomas, Ginsburg, Souter, and Breyer outlined a similar, but more useful standard of general public use. In other words, they contended, binoculars capable of peering through an open window are widely available, and thus acceptable, but thermal imagers are not widely used and therefore constitute an unacceptable enhancement to human senses.

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