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Does Cheap Tech Undermine Legal Privacy Protections?

timothy posted more than 4 years ago | from the let's-ask-professor-shellenberger dept.

Privacy 282

bfwebster writes "Orin Kerr, a George Washington University law professor who focuses on legal issues regarding information technology (I own a copy of his book Computer Crime Law) raises an interesting issue about a 2001 Supreme Court decision (Kyllo v. United States) that prohibited police from using a thermal imaging device on a private home without a warrant. (The police were trying to detect excess heat coming from the roof of a garage, as an indication of lamps being used to grow marijuana inside.) The Court made its decision back in 2001 because thermal imaging devices were 'not in general use' and therefore represented a technology that required a warrant. However, Kerr points out that anyone can now buy such thermal imaging devices for $50 to $150 from Amazon, and that they're advertised as a means of detecting thermal leakage from your home. In light of that, Kerr asks, is the Supreme Court's ruling still sound?"

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The Wire (0)

Anonymous Coward | more than 4 years ago | (#30657602)

Omar Little will use one to find the houses to steal from

Yeah, about that... (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30657644)

Thermal imaging is completely different from MMW technologies. MMW can actually see your junk, and if its someone under 18 going through the scanner.. you've just made yourself some kiddie porn.

Re:Yeah, about that... (1)

SomeJoel (1061138) | more than 4 years ago | (#30658056)

Just because someone is naked does not make it pornography. In the case of scanners, it might be a violation of privacy, but that is quite different than kiddie porn.

Re:Yeah, about that... (2, Informative)

sznupi (719324) | more than 4 years ago | (#30658128)

I had the impression people prosecuting minors sending among themselves just naked pics don't seem to think so...

Re:Yeah, about that... (2, Insightful)

Anonymous Coward | more than 4 years ago | (#30658192)

That's because when they do it to you without your consent, it's okay.

When you do it to yourself of your own free will, it's a crime.

Re:Yeah, about that... (1)

Trahloc (842734) | more than 4 years ago | (#30658174)

Agreeing with the other responder and you might find this [guardian.co.uk] interesting. Looks like those across the pond disagrees with you.

"Thermal imaging devices" are not $50-150. (5, Informative)

jeffb (2.718) (1189693) | more than 4 years ago | (#30657660)

The linked item is not an imager, it's a glorified thermometer. I wish you could get a thermal imager for cheap -- last I checked, they still started in the $3-4K range.

Re:"Thermal imaging devices" are not $50-150. (1, Interesting)

aclarke (307017) | more than 4 years ago | (#30657840)

Back in university (Civil Engineering) in the early '90s, I got to use one on one of my work terms. It was used to check federal buildings for thermal leaks, and it cost around $70k. It was so accurate you could tell the difference in temperature between a person's eyeball and their face from probably 50 metres away.

I remember demoing at a trade show, and telling a girl there she was really hot. Literally. Unfortunately she wasn't particularly "hot" in the other sense, so I didn't ask for her number.

Re:"Thermal imaging devices" are not $50-150. (4, Funny)

InlawBiker (1124825) | more than 4 years ago | (#30658402)

I bet she was growing weed under her clothes. You should have arrested her ass.

Re:"Thermal imaging devices" are not $50-150. (0)

Anonymous Coward | more than 4 years ago | (#30657998)

Exactly - it's a non-contact thermometer. Not likely to distinguish grow lights from poor insulation.

Re:"Thermal imaging devices" are not $50-150. (1)

SQLGuru (980662) | more than 4 years ago | (#30658628)

All they want in probable cause for a real warrant. Temp is probably sufficient for a somewhat less informed judge.

Re:"Thermal imaging devices" are not $50-150. (2, Insightful)

HeckRuler (1369601) | more than 4 years ago | (#30658086)

This kind of raises the question of why the cops needed a $3K device when they really just wanted to know when a roof was >120F. Sure, the thermal imager is more fun to play with, but a $30 kitchen tool, you know the kind with the targeting laser, would work just about as well for a hundredth of the cost. I think our generals use the same logic as these guys.

Re:"Thermal imaging devices" are not $50-150. (4, Insightful)

Smallpond (221300) | more than 4 years ago | (#30658380)

Because "this building is warmer than the neighbors" doesn't give them probable cause, but "this shape looks like a bank of warming lights" does.

Besides, they pay of the cost on the first few auto and home seizures.

Re:"Thermal imaging devices" are not $50-150. (1)

0100010001010011 (652467) | more than 4 years ago | (#30658388)

Because you can't just drive by a house with one of these. They have rather short ranges as in you have to be within a few feet. You don't even know where you're supposed to be looking.

With the thermal imager you can mount it in a van (or helicopter) drive (or fly) around neighborhoods and look for a weird temperature gradient.

Grandma's house at 80F may light up like a Christmas tree, but the whole house probably looks the same. A grower's house may have a 'normal' house but one room may light up, that's what they're looking for.

The better question is why we're spending even $30 on this. Legalize and Tax It. Heck even decriminalization would save most places a ton of money.

Re:"Thermal imaging devices" are not $50-150. (1)

mcgrew (92797) | more than 4 years ago | (#30658658)

Logic says they used an imager because they wanted the walls to be windows. Cops don't care about your 4th amendment rights [slashdot.org] , or any of your other rights for that matter.

Re:"Thermal imaging devices" are not $50-150. (0)

Anonymous Coward | more than 4 years ago | (#30658692)

Speed.

Yes, they could do that as a way of 'searching' one house, but (at least pre-Kyllo) they were using a Thermal Imager to test entire streets on a sweep. Instead of stopping at each house, testing, calibrating every once in a while to make sure the thing was accurate, you could see the temperature of every house's roof at once.

Hence why it was shot down.

Re:"Thermal imaging devices" are not $50-150. (1)

JWSmythe (446288) | more than 4 years ago | (#30658300)

    I was anxious when I saw this story come up. Ooohh, thermal imaging for $100!

    Ya, the linked device is just a thermometer. They've had these for a while. Sears has been selling these for a while, marketed towards automotive and industrial uses. There are several options on the market, like the FLIR PathFindIR ($2,500), Fluke 5YE66 ($2,500) and Fluke Ti10 ($5,000). My dad did work with this in the 60's and 70's, and his equipment was outrageously expensive, and only available through the gov't. They required dry ice and/or liquid nitrogen. He received a prototype in the 70's (at a cost of about $5,000) of what is now the $100 IR thermometer.

    I have a project I want to do someday involving this kind of stuff, but it will either require that I have too much money to burn, or the prices come way down.

Re:"Thermal imaging devices" are not $50-150. (1)

wooferhound (546132) | more than 4 years ago | (#30658728)

The cost of the thermal imager isn't so bad compared to the cost of the steady supply of liquid helium that you have to feed the thing

Re:"Thermal imaging devices" are not $50-150. (1)

vlm (69642) | more than 4 years ago | (#30658324)

The linked item is not an imager, it's a glorified thermometer. I wish you could get a thermal imager for cheap -- last I checked, they still started in the $3-4K range.

Maybe, after ten layers of journalists and editors, he really said they cost about $50-$100 per day. Because they do. Or at least that's the going rate at flir.com (no kidding).

One of my many long term plans has been to rent one locally, and scientifically evaluate which of the ancient walls and windows of my house are REALLY the most in need of insulation. Every other method is either vaguely guessing or relies on the honesty of a salesman (and I'm not that stupid).

$100 to just goof around with a weird camera for a day is a bit extreme, but in the context of spending four figures on insulation and windows and doors, its really a drop in the bucket. And I can still goof around with it after doing the day's "real work".

Try $14,000 (4, Informative)

JoshDD (1713044) | more than 4 years ago | (#30658472)

we have this fancy thermal imager that can see through walls like they arn't there. It detects such subtle changes in temperature you can see the entire inside of the house with excellent clarity from a few hundred feet away. Mind you owning this device is illegal because of the potential for abuse we have exception because it is used for fire dept / search & rescue. But in the wrong hands its a scary device like cops cruising the neighbourhood mind you cops tend to break the law more than your average citizen especially when it comes to traffic violations ( one of our local cops constantly brags about taking 10 min to drive what should be 25 min at the speed limit just to go to the next town for a coffee)

Re:"Thermal imaging devices" are not $50-150. (1)

andydread (758754) | more than 4 years ago | (#30658788)

A look at the cost of some imagers. Note that there is a difference between thermal imagers and heat seekers. etc. http://www.opticsplanet.net/heat-seekers-termal-imagers.html [opticsplanet.net] The start at about $3900.00 and go up from there. A decent one that the cops will purchase with your tax dollars is about $14,000-$40,000 each. And cops love to spend your money on these fancy toys and go out of their way to justify why they need such extravagant equipment.

This is completely different (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30657676)

The imager police where using was just that - an imager. This is just a cheap infrared thermometer. It's like comparing a motion sensor to a video camera, or your finger to your eyes.

I literally laughed out loud when this post insinuated that a $150 thermometer was equivalent to a $5000+ vanadium oxide microbolometer.

Dumb.

Re:This is completely different (5, Insightful)

capt.Hij (318203) | more than 4 years ago | (#30657792)

The point is should the cost matter? Someday that vanadium oxide microbolometer may be easier to obtain and be in more general use. Should the availability of the tech matter or should the courts actually use some sort of sound judgement about how intrusive authorities can be? The availability of the technology is not relevant to whether or not the government is stepping on your rights. The technology to break into your house has always been cheap and available yet for some reason surveillance is treated differently.

Re:This is completely different (0)

Anonymous Coward | more than 4 years ago | (#30658030)

My point was more along the lines of "This is what happens when lawyers try science"

Re:This is completely different (1)

JWSmythe (446288) | more than 4 years ago | (#30658738)

    Lawyers argue. They're usually aware of the science. If they're smart, they find out. Then they'll argue their side, reinforcing their side of the truth until they win. A $2k tool can arguably be common place. The comparison to the $100 toy was just wrong. They can extend the argument, to show that some cars now come with thermal imaging cameras. They aren't terribly common, but they are available. I know it's come on a few Cadillac's. I had read it was to be an option on the Corvette, but I don't know if that ever made it to production or not. Those were Raytheon units. I don't know what other cars have them factory installed. It seems Mercedes, BMW, and Lexus also have options for this too. That would clearly put it into the "general use" category, rather than "specialized equipment".

Re:This is completely different (1)

zippthorne (748122) | more than 4 years ago | (#30658372)

The courts will always go for the "least effort" ruling. If they can decide the case on some technicality without having to address the underlying issue, then they will punt the issue down the road to the next court to deal with.

Re:This is completely different (1)

phantomfive (622387) | more than 4 years ago | (#30658550)

That's not always true. Lately it has been; for whatever reason the court has been trying to rule in the narrowest way possible. Maybe they are trying to avoid another Roe VS Wade controversy, I don't know.

But back in the days of Oliver Wendell Holmes, things were completely different. He was willing to take on everything from freedom of speech to interstate commerce, and apparently had no qualms twisting the law any way necessary to match his viewpoint. Maybe in another 10 years, after the great inflation, we'll have another similarly bold court, for better or for worse.

Re:This is completely different (1)

MobyDisk (75490) | more than 4 years ago | (#30658386)

Availability is relevant because of this scenario: what happens when anyone can tell the temperature of your roof just by grabbing their iPhone 8GS and switching it into thermal imaging mode? Or by going to Google Maps Realtime and clicking the "infrared" option. When everyone could do it simply by walking by your home, then would it make sense to still consider this intrusive?

Maybe it will still be considered intrusive. Maybe it won't. I wonder if someone from 1920 would consider it invasive to use a radar gun to judge your speed, or to look at your profile on facebook, or get a satellite picture of your house. I don't know if this is a bad thing or not, but the availability test does seem to measure what is considered intrusive by society.

Re:This is completely different (1)

5KVGhost (208137) | more than 4 years ago | (#30658548)

"The availability of the technology is not relevant to whether or not the government is stepping on your rights."

Sure, but the trick is figuring out what constitutes "stepping on your rights", and how that changes over time.

It sounds to me like the court is using price and "in general use" as proxies for how much privacy people can/should reasonably expect.

Thirty years ago things like compact wireless video cameras were nearly unknown. Now they're built into your sixth-grader's phone. So in 1978 an average person might reasonably object to being "filmed" in a public place without their knowledge. It's no longer reasonable today, or we'd all be de-facto criminals. Things change.

So what happens in five years, when (real) thermal imagers are sold as toys on Amazon?

"The technology to break into your house has always been cheap and available yet for some reason surveillance is treated differently."

That's because surveillance is different. Sitting outside your house and watching you come and go is not breaking-and-entering. Someone watching, even listening, to you in public is not the same as someone breaking into your home. They are different things with different rules and expectations.

Re:This is completely different (1)

JoshDD (1713044) | more than 4 years ago | (#30658644)

The cops can look at my home with a thermal imager all they want IF I can camp outside the cop shop with my own thermal imager and watch them. But it would be kinda silly to use a thermal imager on my house because I got huge windows everywhere and the blinds are always open giving people outside a view into my entire house. Unless its daytime and I want to watch TV and the glare is bothering me. And plus I got nothing to hide a cop could come and look though my house at any time but would they let me look in their houses/copshop or do they have something to hide? It's gotta be both ways or nothing at all.

Re:This is completely different (1)

mikael (484) | more than 4 years ago | (#30658624)

If it is possible to create a high-resolution endoscope imaging system using a single oscillating fibre-optic thread, a high-frequency crystal/mirror, would it not be possible to do the same with a simple infra-red thermometer sensor?

Cheap or Invasive? (3, Insightful)

Herkum01 (592704) | more than 4 years ago | (#30657684)

I think the question should be, how invasive and how common the technology should determine whether it can be used. Should a telescoping microphone be legal simply because it be can bought for $20 or because everyone has one? If everyone has one, then no one should expect to have privacy from it. If not, they only a specialist would have them, and special equipment would require special permissions, AKA a warrant.

Supreme Court of Canada's take (3, Informative)

SpeedyDX (1014595) | more than 4 years ago | (#30658242)

The Supreme Court of Canada took it in another direction in R. v. Tessling [umontreal.ca] (Wikipedia summary [wikipedia.org] ). Basically the SCC asked whether there was a significant privacy interest in images that don't provide any precise information on what's happening inside the home. This speaks to both points. The first is that the SCC determined that those images are not particularly invasive. You can see heat patterns, but no specific activities. The second point here is the emphasis on the subject matter of the image, and not whether the technology to produce that image is widely available.

Thus with the SCC's stance, it seems that if there exists some technology that can look through the walls of a home and see precise activity, then that technology would at least require a warrant.

In any event, I don't know if Kyllo's decision was that weak in the first place as to hinge on the question of whether a technology is widely/cheaply available. A much more important aspect of Kyllo seems to be the emphasis put on the "sanctity of the home". If the Court hears a similar case in the future, I'm positive that the sanctity of the home question will play a huge role in the decision.

Sound? (1)

qoncept (599709) | more than 4 years ago | (#30657698)

I don't know whether the ruling is still sound, but it seems to me the original ruling was stupid anyway. If you're using anything, readily available and commonly used or not, to get a glimpse of what is going on inside a place you don't have a legal right to enter, how is it different than actually entering?

Re:Sound? (0)

Anonymous Coward | more than 4 years ago | (#30657820)

Um. Because you didn't enter?

Horse left the barn on this a LONG time ago. See drug dogs, for instance.

Now we need to navigate the boundary. One idea I like, but not one a court has ever used, is active vs passive. Passive devices like FLIR or parabolic mics = okay when used from a place you are lawfully allowed to be. Active devices like millimetre wave imagers, or laser mics, not lawful without a warrant because your 'emission' is entering the property. But what do I know, I'm just a scientist.

Re:Sound? (1)

Publikwerks (885730) | more than 4 years ago | (#30658112)

By this argument, the thermal imaging would be allowed, as the heat radiated from the house. I think it should extend to active vs. passive observing, which is what I think the framers would have intended. If your using any device to boost your perception, your actively infringing on the privacy of the person. While I don't expect agents to ignore things they see and hear, once they start to actively watch me, any device which defeats the privacy of my home should require a warrant.

Re:Sound? (0)

Anonymous Coward | more than 4 years ago | (#30658356)

The police (and the rest of us) are absolutely and quite reasonably allowed to get glimpses of places they are not allowed to be. Consider an open window - catching a glimpse through it from a publicly accessible area is very much not the same thing as being on the other side of that window.

If something is visible with the technology that a person reasonably expects everyone to be walking around with, then it's open to view, and I don't see why the police can't look just like anyone else (*recording* is a separate question). In the example of an open window, the necessary technology is a pair of eyes, and obviously most people are walking around with those. In the legal case cited, accepting the claims in the post on face value, it looks like the relevant technology has become substantially easier to obtain. This changes expectations accordingly, although I don't think the balance has tipped in this case - few people, still, are walking around with a thermal imaging setup.

Re:Sound? (1)

BradleyUffner (103496) | more than 4 years ago | (#30658360)

If your house is emitting any kind of radiations (EM, visible light, radio, sound, whatever), then anyone who can receive that radiation while standing in a public place should be able to use it as long as it's just passivly receiving.

Not the same. (4, Informative)

0100010001010011 (652467) | more than 4 years ago | (#30657702)

Thermal cameras used by the cops still cost quite a bit. We had one in the Heat & Mass lab in college and you had to give up your drivers license and student ID to borrow it out, and you couldn't even leave the building.

The cheap devices on Amazon just look like non-contact temp sensors with some fancy electronics. If someone was trying to snoop around my house with one of the devices you linked to they'd probably be close enough to hit with a baseball bat.

This is the cheapest I could find [amazon.com] however something like this [amazon.com] is probably required to do what you're afraid of.

Still a valid question, but the 'cheap technology' isn't quite there yet.

Re:Not the same. (2)

GeckoAddict (1154537) | more than 4 years ago | (#30658088)

I love the second link:

Sale: $30,379.98

Product Features:

  • Manufactured to the Highest Quality Available.
  • Design is stylish and innovative. Satisfaction Ensured.
  • Great Gift Idea.

Nothing says great gift like a $30,000 thermal imager! But hey, it's Stylish!

Re:Not the same. (1, Insightful)

Surt (22457) | more than 4 years ago | (#30658214)

I foresee this being the next 3 wolf moon t-shirt.

Re:Not the same. (1)

TheSync (5291) | more than 4 years ago | (#30658662)

Here is a thermal imager [amazon.com] for $2,000.

Re:Not the same. (1)

Pharmboy (216950) | more than 4 years ago | (#30658672)

Wasn't that ruling more about the fact that the police used something other than "in plain sight" to detect the lamps? I don't think they meant "you can only use inexpensive technology" when they made that ruling. If thermal imaging equipment was a free gift in a box of Cracker Jacks, it wouldn't change this ruling.

The 4th amendment is designed to protect us *from* the government (police) regardless of how common or inexpensive the technology is.

If the police cant the corporations can, then (0)

Anonymous Coward | more than 4 years ago | (#30657762)

the police will just buy that info.

Re:If the police cant the corporations can, then (1)

georgewilliamherbert (211790) | more than 4 years ago | (#30658486)

Buying the info is in many jurisdictions using someone else as an agent for law enforcement, and entails many of the same privacy related restrictions.

However, what's keeping me from renting a thermal imaging scanner and an aircraft (and, as I'm not a private pilot, borrowing a friend who is) and flying around and taking thermal image pictures of all my home down, and then creating a new website that offers image overlays for Google Earth of the resulting heat data, for free?

Anyone who isn't the police isn't prohibited or limited from using that part of the spectrum passively. It's not legally private data for private citizens. We have the optical analogy in California - a bunch of people did that with normal digital photography and the California ocean coastline, flew all up and down it and produced a high res photomap of the whole distance.

It's putting 2 and 2 together in a slightly novel method, but none of the substeps are illegal. If I were to do that, then the info's out in public. If I were to do that, are the police then doing something wrong if they look at the images?

20th century = death of privacy (0)

Anonymous Coward | more than 4 years ago | (#30657774)

Once again any way to deflate the value of privacy.

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny. Thomas Jefferson

Re:20th century = death of privacy (1)

tibman (623933) | more than 4 years ago | (#30658294)

Yes, the whole "i don't want anyone to know the temperature of the exterior of my garage" privacy concern. That's even less a concern than people looking through your garbage. Just think about this stuff objectively for a bit man.

Re:20th century = death of privacy (0)

Anonymous Coward | more than 4 years ago | (#30658668)

Okay smartass, let's think objectively. Do I want anyone to have the ability to drive by and see what I am doing in my private house? NOPE! At this point it might be simple heat sensors, but what about when they get to the point they can see your wife's tits shaking when you fuck her? Want that shown all over the block (or at the po-po station)? Not that you ever get laid.

Re:20th century = death of privacy (1)

tibman (623933) | more than 4 years ago | (#30658824)

So you're saying the infrared camera's are ok then, right? Great! we are all in agreement that they are acceptable.

I however did not say a technology that can literally see through privacy partitions/walls/fences was acceptable. We're in agreement on that too!

BTW, infrared camera's can only see the heat coming off an object, they can't see through another object. Just want to make sure we're all on the same page here.

not in general use (1)

jimwelch (309748) | more than 4 years ago | (#30657780)

not in general use
v.s.
commonly available

Just because you can buy it "cheap", does not mean a "clear majority" of people would know it is a possible spy attempt.
i.e., you need to close your blinds so people can not see you ... (insert crime here)

OTOH:
wiretapping is commonly known as a possibility, yet you still need a court order (ignoring patriot act-for sake of argument).

Also ignoring, that most people believe cell phones are secure.

Stop radiating my lawn! (1)

Anonymous Coward | more than 4 years ago | (#30657818)

I fail to see how the price drop in thermal imaging devices gives any law enforcement body the right thermally image process a residence without a warrant.

Frankly, the "not in general use" quote, if it is indeed from SCOTUS, scares the hell out of me. It's disturbing that a rather highly regarded bench could be rather myopic with regard to the implementation of technology with regard to the 4th Amendment.

Then again, they allowed 'eminent domain' through, so anything's possible I guess. Yea, I went there..

Re:Stop radiating my lawn! (0)

Anonymous Coward | more than 4 years ago | (#30657968)

Yes, I was actually surprised that that was the reasoning. I didn't believe it at first and actually read the ruling; I was astounded to learn that was the actual reasoning they went with. I think their main contention was the search being "unreasonable". They argued that the search was unreasonable because the equipment was highly specialized and rare, not something the common man had every day access to. Following this logic, if x-ray vision ever becomes a reality and is ubiquitous then the 4th amendment pretty much goes away. Yikes.

Re:Stop radiating my lawn! (1)

Wrath0fb0b (302444) | more than 4 years ago | (#30658506)

Yes, I was actually surprised that that was the reasoning. I didn't believe it at first and actually read the ruling; I was astounded to learn that was the actual reasoning they went with. I think their main contention was the search being "unreasonable". They argued that the search was unreasonable because the equipment was highly specialized and rare, not something the common man had every day access to.

Nope, you misunderstand the way 4A jurisprudence works. Here's the general overview:

(1) A warrantless search of a home or residence is presumptively invalid except in certain well-defined exceptions (hot pursuit, exigent circumstances).

(2) The question of what defines a 'search' in the first instance is a little less clear. An observation that does not reveal anything that a citizen can see from the street, for instance, is not a search and therefore doesn't require a warrant. A 'search' (for the purposes of the 4A) occurs only when the government sees something in which there is a reasonable expectation of privacy. A few examples are in order:

(2A) Flying over a house and looking down at it is not a search (California v Ciraolo) because anybody can legally fly over your house and look at it, so you can't reasonably be said to have an expectation of privacy in something that everyone can see.

(2B) Visual observation of a house from a public vantage point is likewise not a search, since it does not reveal anything that anyone just walking by on the street could not observe. The Court noted (wryly): "the Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."

(2C) Entry into "open fields" are likewise not a search because they are not a location in which there is a REP (Hester v. United States).

(3) The argument then devolves not to whether the search was reasonable but whether it was a search at all. The government (and the 4 dissenting Justices) contended that using an IR imager from the street is no different than standing on the street and making a visual observation. They further argued that any photons (like aromas and noises) that leave your property are no longer private in any sense of the word. Just like an officer (or any civilian, for that matter) can stand on the street and listen to your music playing, so to can he stand there and read the photons you are emitting.

Finally, as a matter of realist-thinking, Scalia notes that the desire to construe a "search" narrowly has been partly motivated by a desire to minimize the number of exceptions to the warrant requirement. That is, if visual observation from the street was considered a "search" then it would have to be some exception to the warrant requirement or else we would have to accept the absurd result that an officer driving down the road would need a warrant to glance towards your house.

But in fact we have held that visual observation is no "search" at all-perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.

So, in a somewhat circuitous sense, those of us that want to preserve the rule that nearly all warrantless searches of a house are unlawful need to adopt a narrow definition of a 'search'. We would be much worse off carving exceptions in the warrant requirement.

still valid (1)

Anonymous Coward | more than 4 years ago | (#30657828)

Any interception of the electromagnet spectrum without a warrant should be illegal. Be it cellphone transmission, infra-red heat "leaking" from the garage or 2.4ghz radio "leaking" from my wireless ap or cordless phone.

I don't see how the availability of technology or tools lessens the legal safe-guards of my 4th amendment rights.

Re:still valid (2)

DAldredge (2353) | more than 4 years ago | (#30658000)

You just made it illegal for the cops to use their eyes.

Re:still valid (1)

Wrath0fb0b (302444) | more than 4 years ago | (#30658592)

You just made it illegal for the cops to use their eyes.

Indeed. The legal position that the police may observe from a public vantage point goes back way back in Anglo common law.

Visual surveillance was unquestionably lawful because " `the eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United States, 116 U. S. 616, 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)).

More wryly put:

"[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."

Any theory of the 4A that does not reach the result is at odds with history and highly unlikely to be adopted by an US Court.

Binoculars are still restricted (1)

kdkirmse (801423) | more than 4 years ago | (#30657848)

There are still similar restrictions on tools such as using binoculars to look into peoples windows. Even if thermal imaging becomes much more common place it is hard to see how it would not be any less restricted.

Re:Binoculars are still restricted (0)

Anonymous Coward | more than 4 years ago | (#30657972)

Do you really think it's appropriate to post on slashdot in your underwear?

Sincerely

- your very close friend

Re:Binoculars are still restricted (3, Funny)

Anonymous Coward | more than 4 years ago | (#30658152)

You're right dude... I'll take it off.

I don't think that was the reason for the ruling (1)

EllisDees (268037) | more than 4 years ago | (#30657884)

I thought that it was more about the expectation of privacy that people have inside their own homes and not just the ability to peer inside it.

Re:I don't think that was the reason for the rulin (4, Interesting)

mi (197448) | more than 4 years ago | (#30658120)

I thought that it was more about the expectation of privacy that people have inside their own homes and not just the ability to peer inside it.

You thought wrong... If something is "in plain view", then police needs no warrant to follow-up. For an obvious example, if a cop hears a shot inside a house, he needs no warrant to start investigating. Further, if the window/curtains are open and he can see a crime, his observations can (and should!) be used in court.

Similarly, if we the humans were equipped to detect infra-red light, the police wouldn't have had no problem that's described in the write-up. Arguably, the humans are so equipped now — and that's, what the article is about...

For example, 100 years ago we didn't really have electric lights and thus could barely see at night — without street lights. So, to notice something in your yard at night back then, the cops needed a warrant (for they had to drag some serious lightning equipment). Today they'll see it in their cruiser's headlights driving by and it is thus "in plain view".

Bogus headline (3, Interesting)

mi (197448) | more than 4 years ago | (#30657928)

Does Cheap Tech Undermine Legal Privacy Protections?

The correct heading would've been: "Does Cheap Tech Ease Police Work?" And the answer is, yes it does. The court didn't declare marijuana-growing legal — it just said, that when the cops need to go out of their way to get information, they need a warrant. Once the devices, that were rare in 2000, become common place enough for each cruiser to have one, the information could be considered "in plain view" and no warrant is needed.

Even more generally, the cheap tech makes things hitherto impossible or very hard, possible or even easy. If, indeed, the our concerns were really for privacy (rather than for obstructing justice, when it goes after crimes we feel shouldn't be crimes), we should worry about anyone using these and similar devices to, for example, "see through" walls, curtains, or bushes. If you can use them to take a picture of a rabbit in the night, your neighbor — or some "reality show" — can film you rolling in hay...

Indeed, some time ago Animal Planet was presenting wonderful movies of African fauna. They were shot at night in such darkness, that the cats themselves couldn't see the cameras or each other. But the cameras saw them, and the picture was quite good... Roll forward a few years, and sponsorship by a heavy-weight like Mutual of Omaha will no longer be necessary to obtain such equipment...

Re:Bogus headline (1)

guruevi (827432) | more than 4 years ago | (#30658406)

Applying your reasoning the military-industrial complex that is the US government could easily start up a company to make eg. these [defensereview.com] or these [findarticles.com] and sell them well below their actual value to anyone who wants (say $20 or $50) and subsequently use them everywhere to make a real-time map of anyone's location.

Re:Bogus headline (0)

Anonymous Coward | more than 4 years ago | (#30658426)

The court didn't declare marijuana-growing legal — it just said, that when the cops need to go out of their way to get information, they need a warrant.

If you have a reef fish tank that uses the same type of lights as the pot growers, the cops would be kicking down your doors - a perfect example of the "if you do nothing wrong you have nothing to worry about" argument being horse shit. So I applaud the decision.

I had one asshat lawyer say that it was interesting that all the pot growers also had fish tanks. I asked if was alluding to owning a fish tank as being probably cause - goddamn drug laws.

Scanning ethics (2, Insightful)

girlintraining (1395911) | more than 4 years ago | (#30657948)

In light of that, Kerr asks, is the Supreme Court's ruling still sound?"

Anything reasonably available to you should be available to the police. Thermal imaging scanners, however cheap they become, will never be a commonly available item. Therefore, a warrant should be required because what they're looking for is not in plain sight. Think of telescoping lens and using infra-red to see through drapes to spy on people having sex. In this case, though the technology is readily available, the average person wouldn't do this. There is therefore a reasonable expectation of privacy that people aren't doing this for lawful purposes. Having sex in front of the bay windows of your house, during the day, without pulling the drapes back -- a passerby could see that, and therefore the police can bust you for indecent exposure.

Re:Scanning ethics (1)

sakdoctor (1087155) | more than 4 years ago | (#30658032)

I see in infra-red wavelengths you insensitive clod.

Having sex in front of your bay windows without tinfoil drapes is indecent exposure. Which I love.

Re:Scanning ethics (1)

KlomDark (6370) | more than 4 years ago | (#30658354)

I dream in infra-red and walk in the shadows...

Re:Scanning ethics (1)

Hatta (162192) | more than 4 years ago | (#30658084)

Thermal imaging scanners, however cheap they become, will never be a commonly available item.

Why not? Isn't a thermal imaging scanner just a digital camera without an IR filter?

Re:Scanning ethics (1)

maxume (22995) | more than 4 years ago | (#30658200)

They probably also either block visible light, or are not as sensitive to it. And they probably have better sensitivity to thermal signals.

There must be a better way. (1)

pizzach (1011925) | more than 4 years ago | (#30657994)

Perhaps the government should mandate that the TSA has to catch a certain number of terrorists a month or face losing their jobs? You know, like how speeding tickets etc work? That would make them work harder than these machines will.

Re:There must be a better way. (1)

valdis (160799) | more than 4 years ago | (#30658596)

Overlooking the fact that no police department will admit to a quota of speeding tickets.. ;)

If there *is* a quota for speeding tickets, it's conceivably fulfillable - the town I live in has a police department of around 20 patrolmen, and if you require each to write 3 speeding tickets a day, they can probably do it because in a town of several tens of thousands of people, at least 60 a day will be speeding - it's a relatively common occurence.

However, you can't say "Catch N terrorists a month" because there simply aren't enough actual terrorists out there actually flying. Even if you set the quota at 1 per airport per month, there's several hundred airports in the US (counting all the little regional airports), and most months there are *not* several hundred terrorists actually on planes in US airspace. Maybe 1 or 2. All the rest get to bust somebody innocent.

Think - in all the years since 9/11, we've had a shoe bomber who couldn't light his shoe, a testicle bomber who managed to blow up his junk, and maybe a few others that the plot failed without anybody noticing. I think it's safe to say there's approximately one terrorist per year in the entire air transport system.

Kinda hard to set quotas for something that rare.

Price and Prevalence Shouldn't Effect Legality (1)

BJ_Covert_Action (1499847) | more than 4 years ago | (#30658008)

In all honesty, I and many folks I know could rig up a cheap explosive using some crap around the house and some chemicals in my garage for less than $50 bucks. The components are far more prevalent than these thermal imaging devices. That doesn't mean I should start using these explosives for fishing or concrete removal. Some technology is inherently dangerous by its very nature. It doesn't matter whether or not it is cheap, widespread, or used in everyday life, it still needs to be handled responsibly to be safe.

Could a police force buy a thermal imager and use it with little configuration? Sure. Does that mean that it should be used without any proper checks for responsibility by another government branch? No. Gathering data on a citizenry, like blasting chunks of my driveway apart with a homemade pipe bomb, is inherently dangerous. Sure, they are dangerous for other reasons and have different consequences, but they are both dangerous. So, yes, the Supreme Court's ruling is still sound. There have to be checks for responsibility for the use of dangerous tech. If a government agency wants to use such tech, then another government agency should provide those checks...like a warrant. It really is that simple. Trying to convince irrational and power hungry folk of that, though, is another matter entirely.

Re:Price and Prevalence Shouldn't Effect Legality (1)

maxume (22995) | more than 4 years ago | (#30658238)

Your argument would read better if you just listed the danger inherent in surveillance technology, rather than comparing it to something-go-boom.

Re:Price and Prevalence Shouldn't Effect Legality (1)

Daniel Dvorkin (106857) | more than 4 years ago | (#30658276)

There has never, AFAIK, been a court ruling to the effect that a cop needs a warrant to walk by your house and look at at for evidence of illegal activity. Okay, he's not using an imaging device (except his own eyeballs) to do that -- but what if he wears glasses or contacts? Guess what, you're under surveillance with imaging technology.

Fundamentally, I agree with you; the idea of cops going around and pointing IR sensors at people's houses in a fishing expedition for "probable cause" pisses me off. But there is clearly a line beyond which a certain method of information gathering is no longer "unreasonable search," and I honestly don't think anyone knows exactly where that line is drawn.

Re:Price and Prevalence Shouldn't Effect Legality (1)

mooingyak (720677) | more than 4 years ago | (#30658694)

There is clearly a line beyond which a certain method of information gathering is no longer "unreasonable search," and I honestly don't think anyone knows exactly where that line is drawn.

To me, the line should be set at a point where being a cop doesn't cripple your actions in comparison to regular citizens. That doesn't mean to me that a cop should be able to use any tech that is available to the general public without a warrant, but anything that becomes prevalent enough that a random person could expect to run into somebody who has it any given day should be considered fair game. If the day comes where (to steal someone else's example) most cell phones have a thermal imager built into them, it would be absurd IMHO to say that a cop couldn't use it to establish cause.

Ultimately though I think prevalence rather than cost should be the deciding factor. If everyone can see thermal images in your house, it's hard to argue that they're private.

Re:Price and Prevalence Shouldn't Effect Legality (1)

Itninja (937614) | more than 4 years ago | (#30658496)

Some technology is inherently dangerous by its very nature.

And some sentences are repetitive by saying the thing twice.

Re:Price and Prevalence Shouldn't Effect Legality (2, Funny)

BJ_Covert_Action (1499847) | more than 4 years ago | (#30658740)

I'm an engineer, redundancy is part of my job. =P

Exactly (1)

rrohbeck (944847) | more than 4 years ago | (#30658654)

One day Terahertz imagers will be cheap, what then?

Stupid Question (4, Insightful)

Jaysyn (203771) | more than 4 years ago | (#30658046)

Even if they did it with telepaths or clarivoyants it would still be an invasion of privacy.

An opening for public service (1)

MarkvW (1037596) | more than 4 years ago | (#30658156)

If thermal imaging devices REALLY are that cheap, then there is a grand opening for people who want to do good.

The constitution only prevents cops (and their agents) from collecting the thermal imaging data. It's perfectly lawful for citizens to scan their world. If a neighbor happens to detect a heat pattern far outside the norm along with all sorts of unusual foot traffic, then they could share the information with the cops and do their neighborhood a good turn.

I've thought about toxic chemical sensing in the context of Kyllo. Does this mean that the government can't drive around the neighborhood using enhanced sensing technology to detect poisonous chemicals (think meth manufacturing)? I would sure hope not.

Re:An opening for public service (1)

Stregano (1285764) | more than 4 years ago | (#30658724)

Well seeing as I have an old furnace in my condo that is in an odd place, if they use that on my place, they would end up searching through because there were high heat signatures in a closet in my condo.

Think about that. If they were allowed to just point this at my condo, I could get my entire house searched because my condo's furnace is in a wierd place (it is on the main floor in a closet).

The Supreme Court tried to ignore physics (0)

Anonymous Coward | more than 4 years ago | (#30658176)

I respectfully submit that the Supreme Court was wrong, they are ignoring basic physics.

When a home emits energy in the infrared spectrum, how can it be illegal for the police (or anyone else) to have it impact upon them.
It isn't the police's fault that the homes energy hit them, it is the home owner's. You can't make it illegal for someone to observe that energy is hitting them.

Price not relevant (0)

Anonymous Coward | more than 4 years ago | (#30658188)

Why should price or availability matter? All that is required to do a search is a baseball bat and some aggression, yet this type of search is outlawed without a warrant, in spite of its technical ease.

Constitutionally Speaking (3, Interesting)

Bob9113 (14996) | more than 4 years ago | (#30658226)

In light of that, Kerr asks, is the Supreme Court's ruling still sound?

IMO, the matter of the court's ruling on that basis is irrelevant.

If I have a briefcase full of documents and leave it on the table in the coffeeshop while I use the bathroom, a police officer is not allowed to open it and look inside without a warrant. Certainly "opening a briefcase" is technology in common use. The Supreme Court's ruling may not be valid, but the 4th amendment still stands. While unavailability of technology may be an additional limitation on government authority, the availability of technology does not grant the government new authority which it does not have under The Constitution.

Of course, this hangs on my personal and deeply held belief that "unreasonable" must be interpreted in the spirit in which it was intended in the minds of the liberty-oriented thinkers who wrote it.

Re:Constitutionally Speaking (1)

Maximum Prophet (716608) | more than 4 years ago | (#30658570)

The point was more like: If your neighbors can see into you house using a simple, easy to get, gadget, should the police be able to do the same.

Cadillac has a car with IR cameras and a heads-up display that allows you to see about 150ft further on dark nights. This is a safety device. Imagine the future when better devices become commonplace. People will get fuzzy looks into their neighbor's houses by accident. Will the future police be able to use that as evidence?

Wide Spread Use (1)

Stregano (1285764) | more than 4 years ago | (#30658246)

As the article even states, "The Supreme Court announced the following rule: “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” Because infrared temperature sensing was not in “general public use,” the thermal imaging was a “search” that required a warrant. "

Regardless of whether or not the price has gone down, if the item is still not in "general public use", then we are looking at the same situation. Price of a device should not matter at all about whether or not an item is in "general public use".

Whether they like it or not, whether the price has gone down or not, until the item is in general public use, they need a warrant.

Low Tech? (2, Insightful)

rickb928 (945187) | more than 4 years ago | (#30658262)

An extension ladder up the side of the house to look into the attic windows is pretty low-tech.

It's not just the 'low-tech' issue. It's about police power, Fourth Amendment, and due process.

Pulling a visitor out of their car and interrrogating them about what is going on inside the house is pretty low-tech also. It's just intrusive. Non-intrusive tech is subject to reasonable limits, just like high-tech etc.

If it's available it's fair game (1)

psydeshow (154300) | more than 4 years ago | (#30658268)

Look, if it's that easy to detect the heat coming off of a grow-op, then the growers should be out there detecting and stopping the leaks before the police do.

I'm all in favor of privacy and civil liberties. But I also notice that the police routinely use things like helicopters and phone taps that the average citizen doesn't have access to. So it seems like maybe it was a bogus, or overly optimistic, ruling.

I think that the police should be required to be open and above-board about their methods. They should publicize the fact that they are using thermal imaging devices to scan for suspicious heat in the community. But banning their use outright is silly.

Re:If it's available it's fair game (1)

maxume (22995) | more than 4 years ago | (#30658438)

Phone taps generally require a warrant, and I don't think that police engage in a great deal of home surveillance using helicopters.

Re:If it's available it's fair game (1)

vlm (69642) | more than 4 years ago | (#30658490)

Look, if it's that easy to detect the heat coming off of a grow-op, then the growers should be out there detecting and stopping the leaks before the police do.

Congratulations, you've just discovered that cops primarily only catch the stupid criminals, plus or minus simple luck.

That is a semi-useful argument about the use of thermal imagers, if they only catch the sub-100 IQ crowd, is that discrimination good or bad in itself as an activity with possibly racial overtones, and aside from that is the effect of that discrimination good or bad?

RTFA (0)

Anonymous Coward | more than 4 years ago | (#30658786)

It's not being suggested that thermal scanners be "banned outright", merely that a warrant be required for their use and for evidence gathered with them to be submissible.

Re:If it's available it's fair game (1)

valdis (160799) | more than 4 years ago | (#30658826)

Anybody with a few benjamins or so can charter a helicopter for a ride over the location and see whatever's visible from up there. Ordinary citizens certainly have access to it. See for example http://www.newyorkhelicopter.com/helicopter_tours.html [newyorkhelicopter.com]

Another point is that even in a helicopter, the cops are still constrained by the "in plain sight" requirement - they can't act on anything they see down there unless it's something that anybody else who happened to do a fly-over would see. If they do a fly-over with special imaging gear, that's still going to need a warrant.

And they cops usually need a warrant for that phone tap that ordinary citizens *don't* have access to.

Warrantless Police "Observation" ? (4, Insightful)

bmajik (96670) | more than 4 years ago | (#30658288)

If the police are using something stronger than bi-focals to look at your house, they ought to have a warrant. That means they ought to have reasonable suspicion that a _specific_ crime is being committed.

fuck the police (0)

Anonymous Coward | more than 4 years ago | (#30658382)

fuck haterz

It has to be (1)

scorp1us (235526) | more than 4 years ago | (#30658394)

Because the barriers to the government are far lower than someone of modest means.

I remember an episode of Weeds where the government finds a stolen cross by its signature (hanging parallel to the floor) in the garage of a home. While fictional, I don't think it is far from the truth. I do know that we've had satellites that can spot a single plant of MJ in a field of corn, though there is just too much data to go through (maybe with modern processing this has changed?)

But the "right to privacy" that we enjoy is something like widespread use. If every cellphone camera had a thermal imager on it, that would be "widespread". But as long as you have go out and buy these things for specific use, then they are not in widespread use. For instance I recently bought a HP3325 function generator. It was over $4000 new, but I got it for $200, many years later on a 2nd hand market. Still these devices are not in widespread use, because we have no need for them in everyday life. And we just don't have uses for thermal imagers. (I realize that I'm talking to /., so we'd be the most interested in them for fun and research, but I don't see the same level of interest across society at large) It would at best be compared to a power washer or welder. Sure, people can afford them, but few have them.

I even expect laws to be passed to protect our privacy from thermal imagers, since they are less-offensive that upskirt cellphone pics. Where the imager needs to stretch IR into the visible range, upskirt pics only need a particular angle of naturally visible matter.

What if it were a different kind of evidence? (1)

Asmor (775910) | more than 4 years ago | (#30658452)

Consider this: what if, instead of excess heat, marijuana growing operations frequently gave off yellow smoke as a byproduct. This smoke could be observed by the naked eye. Would the police have the authority to observe the smoke without a warrant, and deduce from that what they may?

I don't really see this as being much different. The only difference is that the byproduct is invisible to the naked eye. Thermal imaging violates their privacy no more than a simple visual scan of the property would.

Re:What if it were a different kind of evidence? (0)

Anonymous Coward | more than 4 years ago | (#30658820)

Consider this: I have a finished garage with space heaters and high output overhead lighting. I also have a house full of reptiles (although most of my habitats are located in two rooms). Would the police have the authority to search my home on the basis that I was drawing more power than my neighbor and I have high wattage full spectrum lighting on these tanks?

Unfortunately, the answer is sometimes yes (google "search warrant high power bill").
Just because they can doesn't mean they should. We have rights and legal process for a reason.
I should not be treated like a criminal nor have my house possibly searched because of my heat signature or LEGAL electricity usage.

Bad Example (0)

Anonymous Coward | more than 4 years ago | (#30658614)

I have no professional legal experience but do have experience in thermal imaging technology (used the Agema 210). The thermal imagers are a world apart from cheap touchless IR temperature probes. Imagers can detect absolute temperature at far greater detail and accuracy than an IR probe.

Good IR probes (like the Raytek cited above) have a spot ratio of 12:1 meaning at 12' away the temperature is an average reading over a 1' diameter circle. The sensors are not temperatures corrected, most assume 74-76F ambient temps. If you read from a reflective surface like aluminum siding or white paint you can kiss any accuracy goodbye.

Using a cheap IR probe to detect growing operations would be irresponsible and completely ineffectual.

DEA uses thermal imaging with no warrants (0)

Anonymous Coward | more than 4 years ago | (#30658810)

Results of thermal imaging on a home can be used as a reason to look more closely for evidence that will allow police/dea to get a search/arrest warrant.

The supreme court decision simply prevents a heat signature from being the only reason for a search warrant to be issued. A high electric bill and excessive heat is enough for a warrant from most judges =(.

get yer goshdarn medical grow card for fuqz sake!

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