HIGH-TECH SNOOPING IS LOWERING PRIVACY THRESHOLD

BACK IN 1992, there was a very peculiar high-tech drug bust. The FBI
suspected Danny Lee Kyllo, an Oregon resident, of growing marijuana
in his home. So they took a special heat-sensing scope-an Agema
Thermovision 210-and pointed it at his roof.

Bingo. The agents saw several spots of high-heat intensity emanating
from inside the apartment. They figured Kyllo was using the sort of
high-intensity plant lights that urban marijuana growers typically
employ. So they got a warrant, raided the place- and found he was
indeed growing about 100 plants.

But one question remained. Was their use of the Thermovision legal?
Or did it invade Kyllo's privacy? Should the FBI have had a search
warrant before they scanned his roof? Kyllo figured they did. So he
sued them, and the Supreme Court agreed with him-setting a powerful
new precedent for privacy in the high-tech age.

The court ruled June 11 that the FBI had violated the Fourth
Amendment, which protects "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures" (caselaw.lp.findlaw.com/data/constitution/
amendment04/). In this case, the court ruled, the FBI should have
applied for a search warrant before it used the Thermovision.

It's a bit weird on first blush. Warrants are only necessary if
you're actually physically going into someone's private space.

Well, that's what made sense in the 18th century when the Fourth
Amendment was framed. But privacy isn't what it used to be. As
cyberlaw critic Lawrence Lessig argued so forcefully in his book
"Code," constitutional interpretations need to keep pace with
technology (www.code-is-law.org).

And spy technology these days is racing ahead at warp speed. The
company that sells the Thermovision boasts of its ability to
literally see through walls and pick up the tiniest trace amounts of
heat (www.thermovision.com).

Granted, these scopes aren't intended solely for police snooping.
They're also used for much less sinister purposes, such as finding
heat leaks in buildings.

Almost every day, some new privacy-invading technology emerges. For
example, someone released a computer virus last week that invades
your hard drive, searches for child porn and then mails an alert to
the police if it finds anything suspicious. In a really misguided
way, it's a well-intentioned bit of vigilante work. But it's also
enormously likely to generate false reports and finger people who
have only harmless pictures on their computers.

The point is this: Privacy these days isn't just about keeping your
credit-card number safe from scam artists. It's about revisioning the
terrain of modern life. We need to realize that we live very much in
a world of data, where our hard drives are our digital living rooms
and the heat trails of our houses betray what we're doing all day
long.

We can thank our lucky stars that the Supreme Court is slowly wising
up to this. But stay tuned-it's an issue that isn't going away any
time soon.