TESTING THE FINE LINE

We must make sure we more zealously guard our rights as technological
advances make it more difficult to protect them. That's the issue in
Kyllo vs. U.S., a case before the Supreme Court, in which the defense
is attempting to hold the line against improper search and seizure in
the face of the government's increasing ability to cross the line.

Narcotics police in Florence, Ore. -- with no probable cause stated
to justify it -- used a "thermal imager" to detect excessive heat
coming from Danny Lee Kyllo's home. Based on that "evidence" alone,
they obtained a search warrant and found more than 100 marijuana
plants he had been growing under special lights.

How does using this device differ from an officer walking by on
public property and seeing something through a window in a private
residence? Should such a scan, which does not involve physical
intrusion onto private property, really be considered a
constitutional violation?

In the past, the court has allowed law enforcement agencies --
without warrants -- to fly over a person's property or use a
flashlight to illuminate a person's car. However, the justices have
required warrants when officials put microphones inside a person's
home or listening devices on telephones, among other surveillance
methods.

It's a fine line, to be sure. But important principles can turn on
that fine line.

The Internet, for example, did not exist when the Bill of Rights
first decreed that officials must have a reasonable suspicion -- used
to obtained a duly authorized warrant -- to violate the sanctity of
our person and our "papers." Our papers now include various
electronic communications, including through the Internet. Police
should be required to show the same proof to go roaming there as they
do to open our mail.

That fine line is what distinguishes between reasonable efforts to
detect and punish crime and granting government officials carte
blanche to do whatever they wish to make sure our lives conform to
officially sanctioned activities. There is a world of difference
between acknowledging that police occasionally see things through a
window and permitting them to snoop -- with ever more sophisticated
electronic ease -- in anybody's house whenever they feel like it for
any reason.

Big Brother, if we allow him to flourish, will not just watch the bad
guys. He will watch everybody, including you and me.