TECHNOLOGY AND PRIVACY

Friday, June 15, 2001 - There were two noteworthy aspects to Monday's U.S.
Supreme Court decision limiting the use of thermal imaging technology by
police agencies.

The first was the nature of the court majority. In this particular case,
two normally conservative justices (Antonin Scalia and Clarence Thomas)
found themselves on the same side as three liberal justices (Ruth Bader
Ginsburg, David Souter and Stephen Breyer). Justice Scalia, writing for
this unusual majority, found that the use of thermal imaging technology
constituted a police search and therefore presumptively required a search
warrant.

The second unusual aspect was the way Scalia carefully avoided any sweeping
assumptions regarding the future direction of technology which, he
acknowledged, was moving at a faster pace than the law.

The court is clearly aware that thermal imaging, which can pinpoint heat
sources in buildings from a distance, is but one of several intrusive
technologies that might be of use to police agencies. Others would include
motion or sound-detection equipment.

The decision thus left open for another day what would happen if, and when,
the general public has routine access to any of these technologies. The
court decision was heavily based on the majority's conclusion that thermal
imaging technology is not yet in "general public use" and that it allows
police to "explore details of a private home that would previously have
been unknowable."

The case before the court involved a Oregon man who was growing marijuana
plants in his home illegally when federal agents used thermal imaging to
detect heat lamps he was using.

We think the decision is a good one and draws a needed distinction. It may
be true, as dissenting justices y pointed out, that all the imaging
technology detected was "heat" and that "no intimate details" of the home
were revealed. But there is another way to look at these intrusions and we
agree with the majority's observation: "In the home all details are
intimate details because the entire area is held safe from prying
government eyes."

Whether this will always be so in the face of advancing technology remains
to be seen, but Monday's decision preserves the notion for a while longer.