PRIVACY VS. TECHNOLOGY:

SUPREME COURT CONSIDERS CASE OF FLORENCE MAN

At 3:30 a.m. on Jan. 16, 1992, a Oregon National Guard sergeant
pointed an Agema 210 thermal imager at Danny Lee Kyllo's home in Florence.

The thermal imager, which gathers infrared radiation just as a camera
gathers visible light, showed unusual amounts of heat coming from the
garage roof and also from a side wall. It also revealed that Kyllo's
residence, part of a triplex, was giving off significantly more heat
than the adjoining units.

Using that information, along with a tip from an informant and Kyllo's
suspiciously hefty electrical bills, federal narcotics agents obtained
a warrant. When they searched Kyllo's home 11 days later, they found
more than 100 marijuana plants and the high-intensity grow lights that
gave off the tell-tale heat.

Kyllo was arrested and charged with manufacturing marijuana. His case
bounced around federal district and circuit courts from 1992 to 1998,
when a three-judge panel of the 9th U.S. Circuit Court of Appeals
ruled 2-1 that using the thermal imaging device "did not constitute a
search under contemporary 4th Amendment standards" and therefore was
not an "impermissible warrantless search." The U.S. Supreme Court then
agreed to hear Kyllo's appeal that law enforcement officials violated
the Fourth Amendment ban on unreasonable searches.

Kyllo, of course, could have avoided arrest and the subsequent years
he has spent studying courtroom ceilings by not playing Farmer Green
Jeans in his attic in the first place. That said, Kyllo's case raises
some valid concerns about the increasing conflict between
constitutional guarantees of privacy in the home and the government's
use of developing technologies, such as thermal imaging, to obtain
information.

In the past, the high court has allowed law enforcement agencies to
fly over a person's property or use a flashlight to illuminate a
person's car without first obtaining a search warrant. Justices,
however, have required warrants when officials put microphones inside
a person's home or listening devices on public telephones, among other
surveillance methods.

Although federal appeals courts have ruled several times in recent
years that thermal scans aren't searches that require a warrant,
Supreme Court justices should recognize the grave threat that this and
other developing technologies pose to Americans' right to expect
privacy in their own homes.

Expert testimony has shown that thermal imaging can reveal private
activities in the home, ranging from cooking a grilled cheese sandwich
to sexual intimacy. Improvements in technology will only increase its
capabilities - and citizens' need for Fourth Amendment protection
against observation by law enforcement officials who have not obtained
a warrant.

Lawyers for the government said Tuesday that the thermal imaging
device used on Kyllo's home did not function like an "X-ray machine,"
but instead measured only external heat. But that argument obscures
law enforcement officials' underlying motive to probe what was going
on inside the home. As Justice Steven Breyer noted, people have a
"reasonable expectation" that activities in their house that "produce
heat" will remain private.

If law enforcement officials want to do a thermal scan of a residence,
they should first be required to prove in court that there is, in the
very precise words of the Constitution, "probable cause" to believe
that criminal activity is occurring on the premises. If they lack the
information needed to get a warrant, they should keep their thermal
imagers switched to the off position.

The Supreme Court is expected to make a decision in Kyllo's case
before the close of the court's current term in June. Hopefully,
justices will make a decision that reaffirms Americans' fundamental
right to expect privacy in their homes, even in an era when technology
makes breaching that privacy frighteningly easy.