TECHNOLOGY TOO INVASIVE OF PRIVACY

WASHINGTON -- Danny Kyllo was not growing rhododendrons in his home on
Rhododendron Drive in Florence, Ore., in 1992. He was growing marijuana,
which when cultivated indoors requires high-intensity lamps that
generate considerable heat and, in this instance, generated a Supreme
Court case.

Last Monday's decision merits attention because the opinion for the
closely divided (5-4) court was written by Justice Antonin Scalia. He is
commonly, and not improperly, called a "strict constructionist." He
describes himself as an "originalist," meaning that he construes the
Constitution by reading the text as its words were used and understood
at the time by those who wrote them.

The logic and structure of the document illuminates the original meaning
of those words. And Scalia's originalism was no impediment to ruling
that Kyllo's Fourth Amendment right to protection against unreasonable
searches was violated by a technology never envisioned by the
Constitution's authors. Dissenting from his civil libertarian opinion
were three more-or-less conservative justices (Rehnquist, O'Connor and
Kennedy) and the court's most liberal justice, Stevens.

Acting on information from informants and utility records, law
enforcement officers used an Agema Thermovision 210 thermal imager to
detect that the roof over Kyllo's garage and a side wall of his home
were unusually hot. Using that evidence, they acquired a search warrant,
found more than 100 marijuana plants and arrested Kyllo. He said the
evidence was illegally obtained because the warrant was issued partly on
the basis of the thermal imaging results, and the imaging itself
constituted a search conducted without a warrant, in violation of the
Fourth Amendment protection against unreasonable searches.

The amendment was written in the context of the English common law
principle that "the eye cannot by the laws of England be guilty of a
trespass." However, more than the law enforcement officers' eyes were
involved in the scan of Kyllo's home that was conducted from the street
and took only a few minutes. The question for the court, as Scalia posed
it, was: How much technological enhancement of ordinary perception from
such a vantage point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that the
thermal imaging technology used is "a device that is not in general
public use" and a homeowner has a reasonable expectation of privacy for
activities that could not be detected without technologically enhanced
eavesdropping. But, then, such eavesdropping is, in a sense, a
contradiction in terms.

There often is wisdom in the logic of common language, so notice the
derivation of the word that would commonly be used to describe what the
government was doing: "eavesdropping." The late Justice Hugo Black noted
that people surreptitiously seeking information used to lurk in the
"eavesdrop," in the shadow under a building's eave. This may not have
been nice, but neither was it invasive. It was the equivalent of
surveillance by the "naked eye"--in this example, the officers' eyes
unassisted by any sense-enhancing technology.

Privacy is neither an easily identifiable thing, like the Grand Canyon,
nor an absolute value. However, the concern of the Constitution's
Framers for protecting privacy began by assuming that privacy of the
home is the most precious and most easily defined sort. In Kyllo's case,
Scalia offered this "originalist" criterion: What preserves the "degree
of privacy against government that existed when the Fourth Amendment was
adopted"? Scalia and four colleagues concluded, "On the basis of this
criterion, the information obtained by the thermal imager in this case
was the product of a search."

Stevens, writing for the three other dissenters, sided with law
enforcement, accusing the majority of abandoning "judicial restraint" as
it overturned the Ninth Circuit, the home of liberal judicial activism,
which had ruled against Kyllo. Stevens argued that searches of "property
in plain view" are presumptively reasonable. Scalia responded that it is
"simply inaccurate" to say, as the dissenters did, that the thermal
imaging did not obtain information about the home's interior, the most
protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the
judicial confirmation process. Jurisprudential theories--"strict
construction," "originalism," the Constitution as a "living document"
that "evolves" to meet "new problems"--will be bandied. Some senatorial
and other critics of President Bush's judicial nominees will portray
those nominees as too much like Scalia, and hence too strict in their
"originalist" constitutional construction to understand the
applicability of the document to modern conditions. The decision in the
Kyllo case should, but probably will not, cause these critics second, or
perhaps first, thoughts.