TECHNOLOGY VS. PRIVACY

In the recent movie comedy "Saving Grace," a new widow trades a
prize-winning orchid growing business for raising marijuana, only to
be uncovered by the night sky reflection from the grow lights in her
greenhouse.

Now, Hollywood turns real as civil libertarians voice concerns over a
sophisticated thermal-imaging device that can detect the heat
patterns caused by the high-intensity lights often used to cultivate
marijuana.

The Supreme Court has taken up the question of whether use of the
imager is an unconstitutional intrusion into an individual's privacy.

Assistant Deputy Solicitor General Michael R. Dreeben contended in
arguments before the court on Feb. 21 that the imager cannot reveal
activities inside the home and that no one has an expectation of
privacy "in the heat that's on the exterior surface of their walls."

But attorneys for an Oregon man arrested for growing the illicit weed
said allowing police to monitor thermal radiation from a home robs
individuals of personal privacy rights.

The case illustrates how technological wizardry--often used to fight
illegal activities--can violate precious privacy rights. Other
potentially invasive high-tech crime busters available to government
agencies include:

* Scopes that use neutron radiation, vapor and heat to ferret out
concealed drugs in boats, planes, cars and cargo.

* Hand-held thermal viewers that measure differences in temperatures
of various materials and can help detect contraband or even human
beings hidden in the bushes.

* A computerized "skeleton key" that permits eavesdropping on private
individuals' e-mail.

* Global positioning satellites that federal agents can use to track
criminal suspects or stolen vehicles anywhere in the world.

* Minute concealed microphones in prison visitors' badges.

* A "buster," a small device that inspectors can hold against a tire
wall to see if it is filled with drugs rather than air.

At O'Hare Airport, U.S. Customs inspectors use a low-power X-ray
machine called BodySearch that can see through clothing a few
millimeters beneath the skin to detect drugs and other illegal items
on anyone entering the country.

The X-ray images are so detailed, a person's private body parts are
visible. Thus officials use same sex operators on the machine, which
they say avoids the need for strip or pat-down searches of suspicious
people. Before being scanned, individuals must sign a release.

"We realize it is human nature that people do not like to be touched
by strangers. This new technology allows us to perform a necessary
duty while at the same time providing the traveler another option to
a physical pat down," said U.S. Customs spokesman Barry Morrissey.

American Science and Engineering, the Massachusetts-based company
that developed the device, makes other products that scan handbags,
luggage, mail and vehicles. The technology can determine if visitors
to a diamond factory are walking out with gems or those to a Navy
base are arriving with explosives.

"All of these items are not invasive but strictly external ways to
detect variations," insisted Robert Peters, vice president for
American Science.

But civil rights advocates say such products can be problematic.

"Law enforcement should have some reasonable suspicions before they
turn this invasive technology loose on individuals," said Ed Yahnke,
a spokesman for the American Civil Liberties Union in Chicago.

It is far too easy to use high technology without controls. Yahnke
cited the controversial digital surveillance that compiled a photo
data file on the crowd at the Super Bowl as a security measure. Only
seven people were revealed to have criminal records.

"So there was no real threat to security," said Yahnke, who is also
troubled by the FBI's so-called Carnivore system. Carnivore can scan
e-mail or monitor cell phone conversations.

"What if a person says jokingly, `I sure bombed in that speech last
night.' Something as innocent as that could be suspicious. There
ought to be strict guidelines," said Yahnke.

DePaul University College of Law Professor John Decker said such
devices could be intrusive because they are, in effect, illegal
warrantless searches.

"Under the Public Exposure doctrine, if you expose your illegal
conduct or contraband by opening the door of your home or business
even a crack, then you assume the risk that someone can monitor your
activities," said Decker. "But these sophisticated sense enhancing
devices gather information about the interior. It's gaining entry
into the premises, and I call that intrusive."

In a recent criminal procedures class, Decker's students discussed
whether the devices venture into the zone of privacy protected by the
Fourth Amendment prohibition against unreasonable searches and
seizures.

They were particularly troubled by the same questions the Supreme
Court is wrestling with in the thermal-imaging case. Did the use of
the machine from outside the home to detect patterns of heat
generated inside by high-intensity grow lights violate the 4th
Amendment ban? Did police use the information improperly to obtain a
warrant to search the house where they found 100 marijuana plants?

Some students agreed with the government that the device merely
enhances human senses, is akin to other aids such as drug-sniffing
dogs and binoculars and does not penetrate the walls of a house. But
others felt technology could infringe on a person's reasonable
expectation to enjoy privacy at home.

"I could probably buy one and use it against my neighbor. The
safeguards we have now may not apply to some of this new technology,"
said second-year DePaul student Dino Katris.

Law student Richard Velasquez is also a Cook County juvenile
probation officer responsible for electronic monitoring of minors
awaiting trial on criminal charges.

"Some of these high-tech things like thermal-imaging devices have a
lot of room for error," said Velasquez. "You never know whether an
attic full of body builders or a faulty furnace is raising the heat
in a house--not grow lights."

No matter how the Supreme Court rules in the thermal-imaging case, it
probably won't end the discussion on whether modern crime-fighting
techniques violate individual rights.

"These new devices should improve technology, not allow more peeping
into people's lives," said Northwestern University Law Professor
Robert Bennett.