PRIVACY RIGHTS

The Infra-Red Debate

Canada's Supreme Court is considering an appeal that seeks to give police
the right to scan homes with heat-seeking devices to look for
marijuana-growing operations. The Court must take the opportunity to
deliver a strong message in defence of privacy rights.

Allowing police to exercise such extraordinary power without a search
warrant allows them to drive down streets, or fly over homes, on fishing
expeditions. It is akin to giving them a key to every locked home in the
country.

This crucial case concerning individual and privacy rights began in May of
1999 when police, from an overhead helicopter, used

Forward Looking Infra-Red (FLIR) aerial cameras to sneak a peak into a
Kingsville home.

The cameras noticed concentrated heat in the home of Walter Tessling, an
indication of a possible marijuana-growing operation, and used that
information to obtain a search warrant. Tessling was subsequently arrested
and convicted of drug charges.

The Ontario Court of Appeal acquitted him in 2003, ruling police violated
his privacy rights by not obtaining a search warrant before using the
heat-seeking camera.

The court ruled the camera enabled police to obtain "more information about
what goes on inside a house than is detectable by normal observation or
surveillance."

Prosecutors opted to appeal that decision.

Jim Leising, director of federal prosecutors for Ontario, argues the camera
doesn't give police the "functional equivalent of being in a house" so it
shouldn't require a warrant.

The Canadian Civil Liberties Association, an intervenor in the case,
recently cited its concern about the erosion of privacy rights in the face
of advancing technology. "What you're dealing with is expanded
technological ability to invade personal privacy," said Alan Borovoy, the
association's general counsel.

Even if the camera only detects sources of heat, it should still require a
warrant. And the precedent that would be set by permitting the use of these
cameras is dangerous in the extreme. What's next? Cameras that see through
walls like X-Ray machines? Ultra-sensitive microphones that can pick up
whispered conversations inside locked homes?

"It's not about drugs," said Tessling's lawyer Frank Miller.

"It's about privacy."