SNOOPING IS SNOOPING

Modern Gadgetry Should Not Dilute Privacy Rights

In one case now pending before the U.S. Supreme Court, the central
figure isn't a particularly appealing one. He was convicted of
growing marijuana at home. And some of the testimony is arcane, to
say the least. It involves the molecular migration of heat through
the walls of buildings.

But the central issue is important to all Americans, and it is quite
clear: As a matter of law and common sense, when is privacy really
privacy?

Federal officers had pointed a thermal imaging device into the home
of an Oregon man to search for the heat patterns made by lights often
used for marijuana cultivation. They found the patterns they were
seeking, obtained a search warrant and arrested their suspect.

He has appealed his conviction, arguing that pointing the snooping
device into his house amounted to a search for which a warrant should
have been obtained in advance. The government is arguing - we would
say torturing - precedents holding that the Fourth Amendment to the
Constitution protects only "reasonable" expectations of privacy.
Someone who conducts business in front of an open window, in a common
example, probably is forfeiting any reasonable expectation of privacy.

The thermal device measures only patterns of waste heat that seep
onto the exterior surface of walls, the government lawyers say. They
contend that citizens cannot reasonably expect these patterns to be
protected by privacy rights.

This argument is elaborately creative, no doubt because it is
palpably weak. The government was interested in heat patterns only
for what they could tell about what was going on inside the house.
The government's case amounts to saying that Americans may forfeit
privacy rights by making unfortunate choices in insulation.

In a precedent that is more genuinely telling, the court years ago
required authorities to obtain a warrant to mount a listening device
on a phone booth where bookmaking business is being done.

If electronic snooping inside a phone booth must recognize privacy
rights, surely electronic snooping inside a home must, too.