NO SNOOPING!

Privacy Laws And Modern Technology Don't Mix

THE heat that American citizens generate in the privacy of their own homes
should remain a private matter, a court has ruled.

The Ninth Circuit Court of Appeals in Portland, Oregon, last month
overturned a conviction for growing marijuana, ruling that the snooping
method used by police was an invasion of privacy. The case, which may go
all the way to the US Supreme Court, is the latest example of how modern
technology is throwing privacy laws into disarray.

When police in Oregon suspected that Danny Lee Kyllo was growing pot plants
in his home, they called in a high-tech snooper, the Agema Thermovision
210. This infrared camera can see through walls to detect warm objects,
including the lamps used to nurture marijuana plants. Officers saw high
levels of heat coming from Kyllo's home.

With that evidence, the police obtained a search warrant and found a
marijuana farm, weapons and drug paraphernalia. Kyllo faced a prison
sentence of more than five years. Now his case will have to be retried.

Several courts had previously ruled that infrared radiation is "waste
heat", and therefore fair game for the police to look at. "Anything you
throw away, cops can pick up and search without a warrant," notes David
Banisar, a lawyer with the Electronic Privacy Information Center in
Washington DC.

But the Ninth Circuit decided that infrared searches violated Kyllo's
"reasonable expectation" of privacy. John Henry Hingson, his lawyer, thinks
the ruling will threaten law enforcement agencies' plans to use other
high-tech snoopers, such as millimetre-wave imagers that can see objects
through walls. "This decision will be reviewed by the Department of Justice
very, very carefully," he says.

Prosecuting attorney Robert Thomson says that his team is talking to the
justice department about fighting on---to the Supreme Court, if necessary.

The arguments surrounding infrared and millimetre-wave cameras are the
latest wrinkles in an increasingly confused debate about technology and
privacy. It is illegal to eavesdrop on cellular phone conversations, but
until the 1994 Communications Assistance for Law Enforcement Act (CALEA)
banned the practice, a 1991 Supreme Court ruling made it perfectly
acceptable to listen in to a conversation conducted on a cordless phone---
even though the only fundamental difference between the phones is the
frequency they transmit on. The issue gets more confusing by the day. As
New Scientist went to press, the US cellular phone industry was threatening
a lawsuit to clarify the CALEA, claiming that "the FBI is requesting
surveillance capabilities that go beyond the law".

Cassidy Sehgal, a lawyer in Washington DC with the American Civil Liberties
Union, notes that e-mail and digital telephony---voice messages carried
over the Internet---currently have little or no privacy protection. "It's
hotly debated right now," she says.

The way forward lies with clear laws on the degree of protection citizens
can expect from the prying eyes and ears of the whole range of snooping
technologies, argue civil libertarians. But these show no sign of being
passed.

Charles Seife, Washington DC