HIGH-TECH POLICE: BIG BROTHER WITH A BADGE?

US Supreme Court today begins weighing the use of technology in police
searches.

British authorities in Colonial America didn't use high-powered listening
devices, satellite tracking systems, and keyword dragnets on the World Wide
Web to solve suspected crimes against the English crown in the 1770s.

They just broke down doors, rifled through a homeowner's personal papers,
and used what they found as evidence.

It was a highly efficient and effective investigative technique.

But such clear abuses of privacy convinced the nation's Founding Fathers to
write the Fourth Amendment to the US Constitution, which guarantees a right
to be free from "unreasonable searches and seizures."

Today, the US Supreme Court is being asked to decide to what extent that
Colonial standard of privacy still applies in a world where high-tech cops
are increasingly able to peer without detection into the most private
aspects of American life.

For example, government officials have the ability to observe the activities
in any backyard or on any rooftop terrace from satellites orbiting the
earth. They can detect the presence of mere molecules of illicit narcotics,
explosives, and other substances with powerful sniffing machines. They can
eavesdrop on conversations in a locked room by training parabolic listening
devices on the windows. And they can monitor computer messages, including
rifling through e-mail accounts in search of evidence.

While law-enforcement agents are able to quickly and efficiently investigate
a wide range of suspects, privacy advocates say the high court must draw a
clear line to prevent modern-day sleuths from becoming Big Brother with a
badge. "Anyone who cares about privacy ought to be concerned about the
advance of technology," says James Tomkovicz, a constitutional law professor
at the University of Iowa.

At issue before the court is the case of Danny Kyllo of Florence, Ore.,
whose home was raided by drug agents after a thermal-imaging device showed a
higher amount of heat emanating from Mr. Kyllo's house than neighboring
structures.

The device detects invisible infrared radiation and shows it as visible
light. Drug agents suspected the heat was being produced by banks of light
bulbs in a marijuana-growing operation inside Kyllo's home.

Armed in part with the thermal-imaging observations, agents obtained a
search warrant and raided the Kyllo home. Inside they found more than 100
marijuana plants, weapons, and marijuana-growing equipment. Kyllo was
charged with manufacturing marijuana.

His lawyers fought the charge, arguing that the agents had engaged in an
illegal search when they used the thermal-imaging device without a warrant.

They said the device detected invisible evidence of activities under way in
a private home, evidence that could have only been gathered by an unaided
human investigator through a physical search of the home.

"The chief evil the framers of the Constitution were trying to protect
against was physical entry into the home, and if technology is performing
the same thing without having to physically enter, then that is what the
framers meant to stop," says Kenneth Lerner, Kyllo's attorney.

"The real question is: Are we going to impose limits on technology or are we
going to let technology overrun our privacy?" Mr. Lerner says.

Police 'simply took a picture'

Government lawyers counter that the device was deployed from an open car
window parked in the street in front of the house.

The device simply took an infrared picture of the house, which was no more
intrusive than agents photographing the house during surveillance, they say.

A federal appeals court panel voted 2 to 1 to uphold the use of such
thermal-imaging devices without a warrant.

They ruled that no warrant was needed, provided such devices only measure
heat activity outside the house and are not used to reveal the activities of
heat-producing humans inside the house.

Courts divided on issue

Federal appeals court judges in four different circuits have reached similar
decisions. But state supreme court justices in Washington, Pennsylvania, and
Montana have barred the use of the devices without a warrant.

"Whatever the 'star wars' capabilities this technology may possess in the
abstract, the thermal-imaging device employed [in Kyllo's case] intruded
into nothing," writes US Circuit Judge Michael Hawkins in his 2-to-1
opinion.

The decision says that because no "intimate" information was gathered by the
device, the surveillance did not amount to a violation of Kyllo's privacy
rights.

In a dissent, Judge John Noonan writes that Kyllo's expectation of privacy
embraces his entire house, including any infrared heat generated by
activities under way behind closed doors inside his house.

"The first reaction when one hears of the (thermal imaging device) is to
think of George Orwell's '1984,' says Judge Noonan in his dissent. "Although
the dread date has passed, no one wants to live in a world of Orwellian
surveillance."

Professor Tomkovicz suggests in a friend-of-the-court brief that the high
court use the Kyllo case as a means to establish a firm constitutional
principle that would aid lower courts dealing with privacy concerns over
increasingly effective high-tech snooping devices.

He says one way to safeguard Fourth Amendment protections would be to
analyze each case from the perspective of a law-enforcement operation
conducted in the 1700s.

If the type of investigative information sought through technological means
could only have been obtained through a physical search of a home in the
1700s, police should be required to obtain a warrant first, he says.

Tomkovicz says the Kyllo case is a prime example.

"At the time of the Framers, you couldn't know if a home was producing
excessive heat without physically breaching the property or visiting the
home," he says. "The only reason they can do this is technology."