CAN'T SCAN WITHOUT A WARRANT

If The Feds Want To Spy On Your Home Using Whizzy Tech Gadgets, They'd
Better Get A Warrant First, The Supreme Court Said On Monday

In an important 5-4 ruling that extends privacy's shield to radiation not
visible to the human eye, the court said federal agents should have
obtained a warrant before using an infrared imaging device to snoop on
Danny Lee Kyllo, an Oregon man they later arrested for growing marijuana.

The decision, written by conservative Justice Antonin Scalia, said even
though the law has long allowed police to peer at homes through their naked
eyes, enhanced cameras and similar devices in law enforcement hands "would
leave the homeowner at the mercy of advancing technology -- including
imaging technology that could discern all human activity in the home."

This ruling seems likely to affect how federal and state police may use
their rapidly-growing arsenal of advanced surveillance tools. In the Kyllo
case, agents used an Agema 210 unit to detect unusual heat emissions from
the halide lamps used to grow marijuana.

Since the Interior Department's unlawful surveillance of Kyllo in January
1992, infrared and other forms of electronic monitoring devices have become
far more invasive, and the Justice Department has spent millions of dollars
in research on X-ray devices that can see through even brick and concrete
walls.

"Certainly optical performance has improved. And over the years thermal
sensitivity has grown a lot greater," said Doug Little, spokesman for FLIR
Systems of Portland, Oregon, which bought Agema in 1998. "Cameras are a lot
more accurate now."

FLIR -- http://www.flir.com/ -- no longer lists the Agema 210 on their
website. Little says that police typically now opt for the MilCAM LE, a
handheld infrared camera that weighs 3 pounds, costs about $50,000, and is
advertised with this slogan: "Perpetrators can turn out the lights but they
can't turn off the heat."

http://www.flir.com/ground/products/milcamle/index.htm/ln=dp/lang=EN

The slender majority of the justices in the Kyllo case strongly reaffirmed
the common law belief that a man's home is his castle, as described by Sir
Edward Coke four centuries ago: "The house of every one is to him as his
castle and fortress, as well for his defence against injury and violence as
for his repose."

http://www.bartleby.com/100/122.4.html

That strident defense of privacy against government intrusion makes Kyllo
"probably the most significant decision on the constitutionality of
technologically-aided electronic surveillance in a generation," said Marc
Rotenberg, director of the Electronic Privacy Information Center in
Washington, D.C.

http://www.epic.org/

Noting that the Court's majority decided that Americans inside their homes
expect their heat signatures and other incidental emissions to be private,
Rotenberg said that the case breathes new life into the Fourth Amendment
"after its battering by overflight, nightscopes, dog sniffing and other
techniques that courts have generally found do not violate the 'reasonable
expectation of privacy test.'"

Larry Lessig, a professor of law at Stanford University, agrees that the
case is a landmark one -- at least, if the slim majority can prevent one of
its side from defecting.

http://cyberlaw.stanford.edu/lessig/content/index.html

"The question is how sustainable it is," Lessig said. "Given the range of
these technologies and the minimal actual kind of invasion they present,
the question is whether the court will be resolute in protecting this
conception of private spaces instead of yielding to the temptation to allow
(surveillance) of criminal activity."

Since the Fourth Amendment prohibits "unreasonable" searches and seizures,
it implicitly permits reasonable ones.

In Kyllo, the majority wrestled with whether viewing a home with
electronically-enhanced gear was even a search at all.

Scalia concluded that "obtaining by sense-enhancing technology any
information regarding the interior of the home that could not otherwise
have been obtained without physical intrusion into a constitutionally
protected area constitutes a search -- at least where (as here) the
technology in question is not in general public use."

Future technology, Scalia said, might even reveal "at what hour each night
the lady of the house takes her daily sauna and bath."

In a dissent, liberal Justice John Paul Stevens -- joined by conservative
Chief Justice William Rehnquist, and swing-vote Justices Sandra Day
O'Connor and Anthony Kennedy -- sided with the Justice Department's defense
of warrantless surveillance, saying disparagingly that "the countervailing
privacy interest is at best trivial."

"Heat waves, like aromas that are generated in a kitchen, or in a
laboratory or opium den, enter the public domain if and when they leave a
building. A subjective expectation that they would remain private is not
only implausible but also surely not one that society is prepared to
recognize as 'reasonable,'" Stevens said.

This decision could influence whether police need a warrant to capture
radio frequency emissions -- a practice known as TEMPEST monitoring --
produced by CPUs and monitors.

http://www.nlectc.org/techproj/nij_p26.html

http://www.wired.com/news/politics/0,1283,32097,00.html

The minority said they dissented because the "observations were made with a
fairly primitive thermal imager" that could only see rough heat patterns
and no details -- but TEMPEST monitoring is reportedly far more precise.

http://www.nlectc.org/techproj/nij_p44.html

http://www.nlectc.org/techproj/nij_p26.html

On a related note, the Justice Department is paying for research on
projects that include the Radar Flashlight and the Radar-Based
Through-the-Wall Surveillance System, which can detect the presence of
people through wooden doors, concrete walls and brick buildings.