PRIVACY PROTECTION THE FOUNDERS WOULD HAVE WANTED

In an admirably forward-looking decision protecting privacy in a
technological age, the Supreme Court ruled Monday that homes should be as
safe from law enforcement's modern electronic intrusions as they are from
old-fashioned, kick-down-the-door searches.

The court said that police in Florence, Ore., searched illegally when,
without a search warrant, they trained a thermal sensing device on a man's
home to see if heat was radiating. Police found hot spots in the roof and
one wall, used that to get a warrant, searched the house, found 100
marijuana plants growing under high-intensity lights and arrested the resident.

Writing for a 5 to 4 majority that scrambled the court's usual ideological
blocs, Justice Antonin Scalia said technology could not be allowed to erode
"that degree of privacy against government that existed when the Fourth
Amendment was adopted." That's powerful reasoning.

Unchecked, technological developments in remote sensing could nibble away
at the zone of privacy Americans enjoy until no place is safe from official
snooping. The court was right to impose the same probable cause
requirements on police conducting electronic searches as it requires of
those who kick down doors.

In dissent, Justice John Paul Stevens argued there is "a distinction of
constitutional magnitude" between "through-the-wall surveillance" which
would be an unacceptable search inside a home and "off-the-wall
surveillance," as in this case, where police merely gathered information
exposed to the public outside a house. Florence police had argued that in
detecting heat loss, their thermal imagers did not reveal any private
information.

But as Scalia said, "all details are intimate details," inside a private
home. He left for another day the question of how much technological
intrusion is acceptable when the target is not a residence. But in its
ongoing struggle to apply the Constitution's prohibition against
unreasonable search and seizure at a time when technology is extending the
eyes and ears of law enforcement to a degree unimagined by the
Constitution's framers, the court Monday laid down an important marker.