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Supreme Court Limits High-Tech Snooping

michael posted more than 13 years ago | from the old-amendment-learns-new-tricks dept.

The Courts 368

MacRonin writes: "In an important declaration of the constitutional limits on new privacy-threatening technology, the Supreme Court ruled yesterday that the use by the police of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a warrant. The court said further that the warrant requirement would apply not only to the relatively crude device at issue but also to any "more sophisticated systems" in use or in development that let the police gain knowledge that in the past would have been impossible without a physical entry into the home. "We must take the long view, from the original meaning of the Fourth Amendment forward," Justice Antonin Scalia wrote for a 5-to-4 majority that cut across the court's usual ideological division. Justice Scalia said that to take any other approach "would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all human activity in the home." There is coverage in the: New York Times, Washington Post, and CNN. This older piece has a little background."

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Yes you can; and it's easy (1)

Anonymous Coward | more than 13 years ago | (#158007)

Instead of the foil, get mylar, or just flat white paint. Instead of the big fluorescents, get high-output security lights like high pressure sodium or metal halides. Try to make it about 50 watts per square foot. By the way Attorney General Ashcroft supports legislation to make it illegal for us to discuss this. Get seeds from companies listed here [] . Ask your questions here [] . Discuss related issues here [] . I wouldn't post any of this if it weren't for Ashcroft, but I'm fed up. Overgrow the government! Why is it illegal to own a plant?

Re:What I don't understand... (1)

Mark J Tilford (186) | more than 13 years ago | (#158012)

Well nobody expects light bouncing off themselves near a window to be private, so that wouldn't be protected.

Re:Another new device.... (1)

Mongr (238) | more than 13 years ago | (#158013)'ve been able to get this technology out of the ads in the back of comic books for over twenty know the sunglasses with the swirly lens in em?

LP Press Release (5)

abischof (255) | more than 13 years ago | (#158014)

The Libertarian Party has also released a Press Release on this matter [] . Interestingly, the release also mentions several other surveillance devices that are still being developed by federal and state agencies. An excerpt:
  • A radar gun that allows police to "see" through concrete walls. The handheld device, about the size of a large hair dryer, shoots radio waves through walls and displays movement on a graph. The device will be in police hands by October.
  • High-tech scanners -- dubbed "X-rated X-rays" by critics -- that can show a clear image of your naked body under your clothes. The machine, called the BodySearch, has already been installed by the FAA in airports around the nation, and is used to examine suspected smugglers.

Alex Bischoff

awesome. (1)

Wakko Warner (324) | more than 13 years ago | (#158015)

I can continue growing marijuana and opium poppies in my closet.

Forget Napster. Why not really break the law?

van Eck phreaking (3)

MikeCamel (6264) | more than 13 years ago | (#158030)

I assume that based on this judgement, van Eck phreaking [] (as featured in Cryptonomicon, and elsewhere) would also be considered illegal. I'm not up on US law, and don't know what difference there is considered to be between going into someone's home and someone's computer, but using van Eck (which isn't "in development", it's there now) to see what people are doing on their screens would seem to be similar to me. Are there any legal references to van Eck phreaking?

I presume that wiretaps are needed for phone-lines, but is that for speech only, or data as well? Echelon, and all the fun ways of looking at data, can get their information from lots of different places, and this, of course, is only one of them.

Another new device.... (2)

afniv (10789) | more than 13 years ago | (#158039)

Wow, talk about a lead in. I just heard on the news on the radio that there is some new radar that "can see through underwear." I don't know how true this is, but if anyone knows of any other news items on the 'net, I would be interested. The purpose of this device is to detect concealed weapons from up to 50 feet away and sounds like it is supposed to be used at airports.

"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"

Re:Another new device.... (2)

afniv (10789) | more than 13 years ago | (#158040)

Cool, thanks for the reference. The radio news did say it could detect weapons from 50feet and also called it a radar. It seems it's neither.

No wonder why I couldn't find it, it's in tarvel, and not technology. Oh well.

And for others, this product is called BodySearch.

"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"

A rather odd decisions, IMO (1)

mik (10986) | more than 13 years ago | (#158041)

The decision would appear to allow using searchlights, telescopes, and cameras to peek through people's windows...

I suppose that using IR imagery will be ok when it is easy to buy IR film [] or IR camcorders [] ? Whoops - maybe it is just fancy IR imaging equipment that is off-limits.

I'd much rather have seen a decision allowing warrantless passive technology (e.g. IR imaging, RF monitoring, etc) but forbidding the use of active technology (e.g. radar, xray, etc).

Re:The importance of strict constructionists (2)

elmegil (12001) | more than 13 years ago | (#158042)

It's a shame that Scalia isn't consistently a strict constructioninst. I am glad he was able to lead the court to this decision, but I think he's led them to plenty of overstepping of bounds also. How about that decision to interfere in Florida Electoral procedures? That doesn't seem to be very strictly constructionist.

Re:The importance of strict constructionists (2)

gorgon (12965) | more than 13 years ago | (#158044)

This is hardly your usual strict constructionist group of justices. Scalia, Thomas, Souter, Ginsburg and Breyer voted together in the majority. That's a very strange combination. I didn't know Thomas ever voted against Rehnquist.

As for possible Bush nominations, this is one area where I hope he's like his Pa. Another nice independant thinker like Souter would be nice. The court doesn't need to become any more polarized. All these 5-4 decisions are bad for the law, since every time there is a new justice there's a possibility that almost identical issues could be revisited.

I hope we shall crush in its birth the aristocracy of our monied corporations ...

Re:What I don't understand... (1)

ethereal (13958) | more than 13 years ago | (#158045)

The scary part is - what happens once these devices are available to the public, as bionic eye implants or something? Do we lose this expectation of privacy all over again?

Caution: contents may be quarrelsome and meticulous!

Re:Another new device.... (1)

ethereal (13958) | more than 13 years ago | (#158046)

I think this was on /. a while back, although I can't find the link. You could basically see through clothing in a blurry black & white way, including counting buttons on a shirt, zippers, coins in a pocket, etc. It was being proposed for airport security.

Caution: contents may be quarrelsome and meticulous!

Thank goodness! (1)

FPhlyer (14433) | more than 13 years ago | (#158049)

I was just about to write something very crude, but then I thought better of it...

Re:A Comment (2)

kinkie (15482) | more than 13 years ago | (#158056)

Because they're people trying to do the best of their job, just like any corporation's CEOs[1].

The problem is in their understanding of what their objectives are.

A simplicistic approach might be that a police force's job is arrest criminals. And if it stops at this, the more criminals they get, the more they're successful at their job.

The problem is that there should be more to being a police force: in the end the real job of a police force should be something like "ensure the public safety". But that's a very elusive goal, so it's easier to fall back to the simpler one (arrest as many criminals as possible [2]).

And to do this, they must stomp over the most elementary civil rights: if you (policeman) shoot in the crowd, you have some chances of hitting somebody you should, while all the innocent bystanders are "collateral damage" that doesn't appear in your curriculum, or on news outlets for that matter (think about the last time you heard a story about some innocent that has been arrested, or murdered [3]).[4]

[1] insert obligatory anti-corporations, anti-microsoft rant here
[2] after all, if everybody is in jail, there will be nobody out there that can endanger public safety
[3] somebody would use the word "executed" here. Those who do, please visit the Amnesty International [] website.
[4] of course I'm not suggesting that any policeman would shoot in the crowd just for the random chance to find a criminal. But I think that it can be agreed upon that the US government is undiscriminately screening children in schools, and this ruling implies that at least up to some point in time the police was undiscriminately using thermal imagin to spy in citizens' houses. This could lead to arresting people randomly.

Re:shocking (3)

BugMaster ChuckyD (18439) | more than 13 years ago | (#158060)

It is shocking ecause he and Renqhuist have been very favorable to the police in search and seizure issues. Renqhuist who is definately a conservative, voted against this one.

Cannabis Growers Rejoice! (1)

FatSean (18753) | more than 13 years ago | (#158061)

This is excellent news! No longer can they sense the heat patterns of your grow lamps and get a search warrant. Of course, the cops most likely can still get your electrical records. Even if you use generators, noise regulations could still shut down your personal-use garden.

Maybe next year...

I'm just curious... (1)

lythander (21981) | more than 13 years ago | (#158064)

If a cop walks up and puts his hand on my wall, and it feels warmer than my neighbors' walls, does this violate my rights under the 4th Amendment? Of course not.

If he looks at my wall, does he violate it? Take a picture? No, of course not.

Yet all they've done here is use a device to percieve the radiation emitted from a surface, very little different from taking a picture of it, or looking at it.


Re:Not so surprising... (2)

MindStalker (22827) | more than 13 years ago | (#158065)

Well I think anything the cop may hear would definatly be evidence to get a search warrent, but may or may not be applicable in court itself. As you can't exactly expect a cop to ignore what they hear. Now if the cop was sneaking around listening or accidently overhear, thats another story in and of itself.

Re:What I don't understand... (1)

Dr. Manhattan (29720) | more than 13 years ago | (#158071)

But how does[sic] these emissions differ materially from, say light bouncing off people in the midst of committing some heinous crime...

The court made a distinction between technology (including eyballs) commonly available and those that only well-funded law-enforcement personnel would have. Presumably, if I don't want to be perceived by eyeballs, I can close the curtains. If I don't want others to know what music I listen to, I can soundproof my home.

If high-res thermal imaging became common, people would presumably become aware of how to mask it or otherwise limit its effectiveness. As I believe was noted in the decision, maybe you don't want your neighbors knowing exactly when you like to use your jacuzzi.

I'd rather the courts made it even more restrictive than this, but hey, it's a nice first step.

Re:The importance of strict constructionists (1)

dublin (31215) | more than 13 years ago | (#158073)

Go back and read the decision. It was Florida's electroal process, but a national election hanging in the balance with the results becoming less and less certain and reliable with each successive recount. The SC should never have been involved in that case, I agree, but Gore's unwillingness to admit defeat after repeated recounts (all of which have upheld Bush even after the fact) forced the issue there.

Scalia is the most consistent strict constructionist on the court, but even he has his bad days from time to time...

The importance of strict constructionists (4)

dublin (31215) | more than 13 years ago | (#158074)

If this doesn't highlight the importance of strict constructionists on the Supreme Court, I don't know what does.

Scalia is absolutely right here, as usual: any other decision would result in our rights being quickly eroded away by advances in technology.

It's too bad the Democrats are already planning to "fight dirty" to prevent another legal mind like Scalia's from sitting on the court. (Of course, that presupposes that Bush has the cojones to nominate someone of that caliber, a very iffy proposition given his demonstrated invertebrate nature to date...)

I knew it!! (2)

DirkGently (32794) | more than 13 years ago | (#158079)

Nice to see that I've been wearing a tin foil sailor's hat for all the right reasons. I wonder how much 4x8 sheets of 1/8" copper go for?


Re:The importance of strict constructionists (2)

revscat (35618) | more than 13 years ago | (#158082)

If this doesn't highlight the importance of strict constructionists on the Supreme Court, I don't know what does.

It's not his strict constructionist views that I have a problem with (indeed, I tend to agree with those) but his almost blind adherance to tradition without regard for changing social mores that cause me to disagree. Don't get me wrong: I respect Scalia a great deal. He's an incredibly well-versed Justice with a sharp legal mind, and his adherance to principle is admirable.

However, like the father in "Fiddler on the Roof" he shouts out "Tradition!" too frequently for my tastes. Unlike that father, though, Scalia fails to alter his opinions -- even in the slightest -- based on either new information or the simple fact that people's beliefs have changed. Social mores and taboos do (and should) change as time goes on. Scalia has given far too much weight to the way things were yesterday as a rationale for his decisions.

...And I really did think the majority's stance in the Florida recount was atrocious.

- Rev.

repeated recounts (2)

wiredog (43288) | more than 13 years ago | (#158095)

There weren't repeated recounts. There wasn't even one complete recount. It looks like a complete recount wouldn't have changed the outcome, but that doesn't change the fact that claiming that there were "repeated recounts" is, at best, misinformation.

Now, let's watch that karma burn.

Anyone remember "Blue Thunder"? (3)

wiredog (43288) | more than 13 years ago | (#158096)

Movie with Roy Schneider made in about '84. With the LAPD using infrared imaging technology and Apache-like helicopters.

Re:What I don't understand... (1)

sinisterthumb (66414) | more than 13 years ago | (#158112)

Should those sound waves be private, too ?
Absofuckinlutely. If law enforcement would like to sit outside your house with a laser mic they should have to get a warrant as well.

Re:The importance of strict constructionists (1)

Stonehand (71085) | more than 13 years ago | (#158116)


SCOTUS had appelate jurisdiction, after all, given that it had already gone through the state courts. And there was a question of whether the FL Supreme Court was providing equal protection under Florida laws to the members of different counties.

Re:The importance of strict constructionists (1)

Stonehand (71085) | more than 13 years ago | (#158117)

In that case, Scalia made the point that if the state (or local jurisdiction, if allowed by State law and when dealing with local officers) wanted to restrict arrest rights further, they could. For Federal law-enforcement officers, only Congress can set the limits (or, through delegation of powers, the appropriate Federal agencies). IOW, lawmakers and officers are to use their discretion, and it's possible to punish officers for frivolous arrest -- if lawmakers so choose.

Re:I'm just curious... (1)

Stonehand (71085) | more than 13 years ago | (#158119)

If he's walking up to your house without a warrant, you have every right to accuse him of trespassing and demand that he leave. He's also going to get a far less useful heat reading than he would with a decent thermal imaging camera.

And pictures don't normally reveal much about what's going on inside.

Scrambled Satellite Signals (2)

Jah-Wren Ryel (80510) | more than 13 years ago | (#158125)

I've had a slightly different take on this for quite a while. I believe that federal laws that make it illegal to descramble satellite or other signals like that of cell phone traffic that pass through my property are bogus. The information is there, it is on my property, I didn't ask for it to be there, I should be able to do what I want with it.

Obviously the US government does not agree with me on that issue. But, at least they are being consistent here. The heat and other non-obvious emissions from my property are not intended for law enforcement or any one else to be able to use, even if they pass through public property.

So, as long as it isn't legal to watch pirated satellite tv I think it is proportional that the cops can't watch us in our own homes.

Re:Another new device.... (3)

Speare (84249) | more than 13 years ago | (#158128)

This scanner you're referring to does NOT work "50 feet away". travel news 2000-08-21 []

I couldn't find a larger image than the one in this CNN story; you get body shape with ghostly clothing over it. The subject has to stand on a platform inches away from the scanner. It's to be used where strip-searches would otherwise be warranted, or in high-profile airport situations.

Re:The importance of strict constructionists (2)

phunhippy (86447) | more than 13 years ago | (#158133)

Scalia....... I find Scalia to be a very interesting justice, As i consider myself a bleeding heart liberal type, most of my friends can't beleive i would like scalia, but its in cases like this where he really shines through on people's basic rights. I bet he'll end up Chief Justice one day, Scalia on a more liberal court would be a great day for human rights thats for sure.

Re:repeated recounts (1)

Cort_Tompkins (86880) | more than 13 years ago | (#158135)

There were repeated recounts of all of the predominantly Democratic counties! Machine recounts, and then hand recounts. Those are repeated recounts. Recount them if you have to.

Re:The importance of strict constructionists (2)

ChristTrekker (91442) | more than 13 years ago | (#158136)

Just an aside, by way of agreement with your analysis of Scalia. One of my best friends is clerking for Scalia this year and has told me several times that Scalia is the smartest person on the SC and the finest legal mind he knows of.

I have zero tolerance for zero-tolerance policies.

Re:shocking (2)

11thangel (103409) | more than 13 years ago | (#158141)

It's not the convservative making a pro-privacy decision that shocks me. It's the courts making an educated decision.

Re:public use? (2)

Artagel (114272) | more than 13 years ago | (#158156)

The police do not have to be blind to what your neighbors can readily see and know. "General public use" surely means the police officer can wear ordinary corrective lenses or contacts when looking at your house. High-powered telescopes are out, as such behavior is generally illegal even for private people for looking into homes. (Peeping Tom laws) The whole question turns around what is "reasonable."

Re:I'm just curious... (2)

Artagel (114272) | more than 13 years ago | (#158157)

The government was watching the light bulbs inside the house. It was not watching smoke emerging from the chimney, or feeling heat on the walls of the house. (As I recall, in this case, the lamps were in the attic, and the heat coming from the roof.)

It really comes down to what is reasonably considered to be in "plain view." Once you put your trash out for collection, it is, but while it is on the back porch in the trash can, it isn't. If you can see it from a window by the front door it isn't, but if you can see it with a telesecope from the church steeple 5 blocks away, it isn't.

It all comes down to the word "reasonable", in the context of home privacy. They sat 9 grandmas and grandpas down, and came out with this result. Change the facts a little, and maybe the votes are different. In this area of the law it is possible to overcomplicate it.

In general, home cases are mostly about the privacy of the home, not the needs of police. If he'd been doing this growing in the empty room above his gas station, he'd have been nailed for sure.

Re:This ruling is a mistake (2)

Artagel (114272) | more than 13 years ago | (#158158)

Pot odors would be enough to get a warrant for sure. Loud music, if a distubance of the peace, could justify him going up and knocking on the door and getting a better whiff. Heck, might justify an arrest w/o a warrant, but I don't think so.

The justification for scanning Kyllo is that he lived NEXT DOOR to somebody the cops suspected of growing pot. No noise, no smell, no bother, no justification, just random nosiness.

Re:What I don't understand... (2)

jea6 (117959) | more than 13 years ago | (#158163)

I believe the SC has often used the phrase "reasonable expectation" of privacy. For instance: Bong on the dashboard: not private. Body in the trunk: private. Shouting, "I'm going to keep stabbing you with this knife until you are both DEAD!" at the top of your lungs: not private. Quietly killing your ex-wife and her boyfriend such that only Kato Kaelin heard anything: private. Heat emissions: private, for the time being. Once the barrier of "reasonable expectation" is eroded, Heat emissions: not private.

I recall reading some time ago that in certain area, the pollen count for marijuana was extremely high. In this case, establishing that type of empirical evidence may be sufficient for a judge to sign a warrant.

If I also recall, part of this case originated with much higher than normal consumption of electrcity in the guys home. That information was not private.

Re:What I don't understand... (1)

regen (124808) | more than 13 years ago | (#158172)

It has to do with the expectation of privacy. I expect people to be able to see through my windows, I don't expect people to be able to see through my walls.

Re:A Comment (2)

Ray Yang (135542) | more than 13 years ago | (#158176)

It's disturbing that the FBI tries to do this sort of thing, sure. But that's their *job*. Their job is to track down crooks, by any means the law deems acceptable. I'm no lawyer (or lawyer-wannabe), but that's a huge gray area, and if the difference in making a case (which is your job) lies in getting a piece of evidence, you're going to be willing to go quite far to get it.

This means, by the way, that it's our job to view the FBI's attempts to control surveillance technology with utmost distrust if we want to preserve our freedom.


Re:Another new device.... (1)

Mxyzptlk (138505) | more than 13 years ago | (#158180)

This technology is several years old, so it is not that new, but perhaps it is just now being installed and used? Look at Millivision's [] site, and click on the link on handheld scanners [] . Another example is a similar product [] from a company called Trex Enterprises.

Re:This is so fucking lame (2)

shanek (153868) | more than 13 years ago | (#158201)

Look, Coward, this happened yesterday. Slashdot didn't actually break the story, y'know. had it up last night.

This decision is A Very Good Thing for protection of our Constitutional rights.

Good (5)

shanek (153868) | more than 13 years ago | (#158202)

Good that they did this, but it's disheartening that the vote was so close.

In response to the ruling... (1)

buck-yar (164658) | more than 13 years ago | (#158211)

Pot smokers everywhere celebrate by lighting a bowl.

"What were we celebrating again..?"

Re:LP Press Release (1)

jmoloug1 (178962) | more than 13 years ago | (#158217)

High-tech scanners -- dubbed "X-rated X-rays" by critics -- that can show a clear image of your naked body under your clothes. The machine, called the BodySearch, has already been installed by the FAA in airports around the nation, and is used to examine suspected smugglers. This may or may not be a big deal. If they are using them to scan domestic passengers, I'd cry foul. However, if they are being used at international airports as an aid for Customs Agents, then I'm all for it. You have to realize that your rights are virtually non-existent at the border or when entering another country.

Re:I'm just curious... (2)

jmoloug1 (178962) | more than 13 years ago | (#158218)

The problem is the assumption that if your house is a little warmer than your neighbor's, that you must be doing something illegal and therefore they have the right to search your house. I have a big problem with that. They're free to do all the thermal imaging of my house that they want, but they can't use it as a basis for assuming I'm a criminal.

question authority.... (1)

Capt. Beyond (179592) | more than 13 years ago | (#158220)

Just because the Supremes deemed this technological use as illegal by authorities, does not mean that they will not still use it. They just can't enter it into evidence. But by gaining knowlege thru these devices, can gather other evidence to be used against you.

Re:Not so surprising... (1)

Enigma2175 (179646) | more than 13 years ago | (#158225)

what about a cop walking up to to your door and listening, or looking through the window?

You have a reasonable expectation of privacy on your private property. If an officer came onto your property for the express purpose of eavesdropping on you, the evidence gathered cannot be used against you in court. Now if he was there for some other reason (noise complaint, bad parking job, etc.), something he overhears (or I guess "oversmells" when you are talking about pot growers) would be admissible in court.


Re:And there I thought that Antonin was a pusbag.. (1)

Enigma2175 (179646) | more than 13 years ago | (#158226)

What I'd like to know is how many people convicted for drug offenses where the prosecution hinged on evidence obtained as a result of these scans will be released or offered new trials on evidence that was legally obtained.

IMHO, there will be quite a few. This is a quite common tactic among the police. If the heat scan was the only probable cause used to get a warrant to search the house, the conviction most likely would be overturned. I'll bet the guys at High Times [] are dancing in the streets ;-)


Re:What I don't understand... (1)

Enigma2175 (179646) | more than 13 years ago | (#158227)

But how does these emissions differ materially from, say light bouncing off people in the midst of committing some heinous crime

I think the difference is you use your eyes to see someone commiting the "heinous crime", but you must use special equipment not available to the general public to scan for these heat signatures.


Implications ...? (2)

Alien54 (180860) | more than 13 years ago | (#158231)

the court said the key test was whether law enforcement officers would have had to enter the home to obtain the same information if they did not have access to modern devices. In such a case, the majority said, the officers must first show probable cause of a crime and obtain a search warrant, just as they do to physically enter a home and conduct a search.

I find this interesting in the context of other forms of technology survaillence, such as software back doors, etc. This ruling is probably more important than we first realize, just for that reason.

Check out the Vinny the Vampire [] comic strip

Re:And there I thought that Antonin was a pusbag.. (2)

Erasmus Darwin (183180) | more than 13 years ago | (#158240)

These scans-- until now-- were a major source of evidence for probable cause, since fans blowing out heat look like flame-throwers on infrared cameras.

In the cited case, they only referred to hot spots on the walls of the house. Furthermore, the quoted decision talked about using the thermal scan as a means of collecting data that was previously only accessible via physical intrusion. However, I wonder if that would apply to a house that was actively venting heat. It seems like it would be possible to feel the heat without using technology. Additionally, you'd be able to see some heat via thermal imaging even if the device wasn't pointed at the house itself. So it strikes me as less of a see-through-walls thing. Given how close this vote was, I could potentially see the fan scenario being on the other side of the invisible dividing line.

Well, it's a bit different... (1)

Akardam (186995) | more than 13 years ago | (#158241)

If a cop happens to be strolling past your house, and sees you through a window, stabbing your wife, or hears her screams, of course he's going to investigate. That's REALLY compelling proof that the officer should act on immediately. If it was all part of playactng (or something), then maybe the people in the house are a bit embarrased, but the officer's done his job.

What the ruling is saying is that in order to point a device that can read infrared THROUGH WALLS (infrared normally can't be "seen" or "heard" by humans unassisted), you need to have a warrant. I.e. in order to peer into someone's house like that (which does violate their privacy... of course, if they're committing a crime, they've waived such a right). This assumes less drastic cases of, for example, an officer saying "We know several convicted drug dealers keep visiting this house, leaving and picking up packages. We need to scan the house to see what's going on in there."

Nobody's ever said that a cop really needs to get a warrant to interfere with a crime (or apparent crime) already in progress. But the infrared signature generated by things in my house is not something that under normal circumstances gets "broadcast" to the public, like light from my windows or sounds.

Re:And there I thought that Antonin was a pusbag.. (2)

ichimunki (194887) | more than 13 years ago | (#158244)

Um, how are they going to know about your indoor veggies or tanning bed if they can no longer scan your home for infrared and use that to obtain a warrant? These scans-- until now-- were a major source of evidence for probable cause, since fans blowing out heat look like flame-throwers on infrared cameras. What I'd like to know is how many people convicted for drug offenses where the prosecution hinged on evidence obtained as a result of these scans will be released or offered new trials on evidence that was legally obtained.

Re:And there I thought that Antonin was a pusbag.. (2)

elefantstn (195873) | more than 13 years ago | (#158247)

In regards to your title...

That's the thing about Scalia that most people don't understand. Because he ruled along conservative lines a couple times, everyone assumes he's Jesse Helms' judicial equivalent, but he's not. It's not about ideology with him, it's about how the law was written. In the case of Roe v Wade, it's not that he thinks abortion is wrong, it's that he thinks that Congress, not the Supreme Court, should decide whether it's right or not. In this case, sweeping the neighborhood looking for pot growers with infrared clearly violates the 4th amendment, and so he ruled against it, even though a law-and-order-type like more radical right-wingers would approve of it.

That's why I admire him as a judge - he makes his decisions based on what the law says, not what he wishes it said. Strict constructionism.

About time (2)

MtViewGuy (197597) | more than 13 years ago | (#158250)

I think the Supreme Court has realized one very frightening aspect of improved sensor technology: it can spy on anyone and anywhere without needing court permission. Especially now with low-cost low-level light and infrared cameras pretty much achieving military quality.

Hopefully, it will prevent things like pointing sensors at private residences on the whim.

Using these advanced sensors to operate on a court-approved surveillance of illegal drug activity is one thing, but using them to do things like trying to enforce our morals laws is quite something else.

Now I can grow pot in my basement without worry!!! (2)

arnie_apesacrappin (200185) | more than 13 years ago | (#158251)

Time to go to the store and get reflective foil and big flourescent lights.

ESP (4)

Deanasc (201050) | more than 13 years ago | (#158252)

So does this mean the cops can't use their Psychic Friends anymore?

It matters very little.... (1)

Jaysyn (203771) | more than 13 years ago | (#158253)

...there are still very many devices, that weren't covered by this ruling, that the Cops can use to spy on you. How about an X-ray gun that lets the user view you like you aren't even wearing clothes. No, not enough? How about an electronic nose that can smell drugs in the air from 60 yds away (hope you don't have any friends who smoke pot, that stuff gets in your clothes more than you think)

read it and weep.... w& record=210


In another ruling... (1)

briggsb (217215) | more than 13 years ago | (#158266)

The court reversed its decision [] on the Florida recount. Saying it was just joking.

Re:What sucks about this (1)

alen (225700) | more than 13 years ago | (#158269)

I hope you do realize that these people were breaking the law. I'm all for controlled legalization, but the law is the law.

What I don't understand... (3)

tmark (230091) | more than 13 years ago | (#158272)

Part of the logic of the majority opinion was that the thermal emissions issued from inside the house in question should be private : "Americans inside their homes expect their heat signatures and other incidental emissions to be private" (quoting from the opinion reported in Wired).

But how does these emissions differ materially from, say light bouncing off people in the midst of committing some heinous crime, while in the privacy of their own backyard, or while inside their home in front of an open window ? Should that not be sufficient for law enforcement to take action ? How about sound waves emanating from the sounds of a crime in progress ? Should those sound waves be private, too ?

shocking (5)

bmj (230572) | more than 13 years ago | (#158274)

i don't really understand why everyone seems so shocked that scalia would be against such searches....true blue conservatives don't want the government to have power to intrude into our private lives. private property was one the basic rights this country was founded upon.

Re:Interesting... (1)

C0vardeAn0nim0 (232451) | more than 13 years ago | (#158279)

For what I read it aplies to anything inside your home.

Anything that 30 years ago would require physically entering your home and that now can be done at distance with hi-tech devices requires a warrant...

In this case, if someone uses RF detection to see what's going on your 'puter screen without a warant, the evidence won't be accepted in a court.

But I may be wrong...


Time for Cheetos (1)

NineNine (235196) | more than 13 years ago | (#158282)

Looks like it's time to stock up on the Cheetos, Little Debbies, and doughnuts again.

And there I thought that Antonin was a pusbag... (3)

Bonker (243350) | more than 13 years ago | (#158287)

I suspect that the most important aspect of this decision will not be in home searches, but in the precidents it sets for future cases about illegal search and seizure of data. Hands off my PC, peachfuzz...

Now, that being said, it's surprisingly easy for cops to get a warrant for anything they want to do, at least in Texas. This will only protect people from 'sweeps'. If the cops decided you're growing pot in the back room, they'll get the warrant with little or no effort, even if you're growing normal, non-skunky veggies, or have a tanning bed.

A Comment (3)

Popocatepetl (267000) | more than 13 years ago | (#158305)

Does anyone else find it disturbing that the FBI always seems so eager to do "this sort of thing" (e.g. Carnivore)? What motivates these people? They are people, by the way. The FBI is usually referred to as an entity separate from any individual, but it boils down to some people trying to spy on their fellow citizens.

If your point of view differs from mine, try thinking about this comment as if it were sarcastic.

Re:"Supreme" court? Hah! (1)

Bobo the Space Chimp (304349) | more than 13 years ago | (#158316)

Yes, but half-senile old fools who have a shot at acting like a founding father, protecting rights rather than eroding them as all other politicians do (being power-hunger, they never seek to lessen government intrusion.)

The dissenters' feeling that it should be allowed unless it is like a "presence in the area being searched" is meaningless. In the future you could conceivably have sensors using nuclear magnetic imaging, god only knows what else, and see almost as clearly as if there were no walls there, and that would be an entirely passive system, only using emanations "outside the home".

Would it pass the King George test? King George would have gladly used such a system, and the founding fathers would have specified the need for warrants for passive technological surveillance measures rather than just a literal, physical search and seizure (much like King George would spy on Internet traffic and the Constitution would speak not of freedom of the press, but of freedom of information flow.)

Re:A Comment (1)

banuaba (308937) | more than 13 years ago | (#158327)

The job of the police is to Protect and Serve.

Like robocop said: "Protect the innocent. Serve the public trust. Uphold the law."

And of course, your little Amnesty International plug there does nothing to enhance your credibility.

So, all in all, not a very good troll. You should have thrown something in there like "We could fix this problem by taking all of the guns."


thankfully less chances of mistaken arrests (1)

RevDobbs (313888) | more than 13 years ago | (#158329)

It's about time that thermal imaging was limited to after a warrant is issued... I always feared that my Beowulf cluster of P!!!'s would be mistaken for some hippies growin' dope...

God bless those Albino Ninjas...

Re:shocking (1)

McComas (398515) | more than 13 years ago | (#158331)

People find the Scalia move suprising because the conservative line usually includes support for 'tough on crime' measures, especially those which focus on drug related crime. Such thermal imaging devices would be invaluable in finding hothouses, labs and the like.

Re:public use? (1)

AvatarADV (411445) | more than 13 years ago | (#158334)

Exactly so. The idea is that a policeman shouldn't have to close his eyes to something that everybody else can see; if I have a big bag marked "hash", "contains dope", and "weed here", that alone is probable cause for me to get my bag searched. Similarily, if I'm standing in my living room and flashing passersby out my front window, that's "public" indecency even though I'm in my own home.

Likewise, if everybody on your block has X-ray glasses that can see through your walls, you don't have an expectation that what takes place behind those walls is private, and thus it's not any greater of an intrusion for a policeman to look.

Re:What I don't understand... (1)

KilljoyAZ (412438) | more than 13 years ago | (#158335)

If the crime was truly heinous and they can hear/see it, police have "probable cause" and can break into your house without a warrant to stop the crime. To get a conviction in court, they had to prove they had probable cause to bust in.

Interesting... (1)

velocipenguin (416139) | more than 13 years ago | (#158338)

So does this mean that they can't read *any* emissions from someone's house, regardless of the type? Does this mean that we won't have to resort to TEMPEST shielding to ensure that our RF emissions remain private? Or are they saying that this just applies to things like thermal scans?


Technology not widely available (4)

subnet-zero (419905) | more than 13 years ago | (#158339)

I heard about this on NPR yesterday. They read from the text of Scalia's writeup. He laid out a general rule for future cases involving the use of technology to spy into private homes. He said that a warrant is needed for any surveillance of a private home using technology which is not widely available to the public. For instance, it is acceptable for cops to use binoculars or a searchlight to peer thru your windows, without a warrant. Some issues this "widely available" clause brings up: What is considered widely available? Just that some private citizen can buy it? Or that some percentage of the publlic can afford? If "widely available" just means that a private citizen can buy it, could not authorities instruct the tech manufacturers to make it available to the public at ridiculous prices, so that authorities don't need a warrant, while keeping the tech out of the hands of almost all citizens? How does this ruling affect the use of advanced, secret programs like Carnivore to spy on our computers? Carnivore spies on traffic thru an ISP, so it seems like it's not spying on the PC in the target's home; but the IR imager spies on the IR radiation in the air near the house; if you can't use IR tech from across the street from a house, to spy on IR radiation which emanates from the walls of a house without a warrant, can you use Carnivore or other similar programs from the ISP to spy on packets emanating from the NIC in your home PC without a warrant? Just some thoughts. Feel free to discuss them.

Re:Not so surprising... (1)

zonk the purposeful (444367) | more than 13 years ago | (#158341)

Ok.. but referring to visual and audio devices - what about a cop walking up to to your door and listening, or looking through the window? It seems that they are preventing the use of technology to do searches, but what about the good old fashioned manual methods, are they 'constitutional'?

Re:Another new device.... (1)

zonk the purposeful (444367) | more than 13 years ago | (#158342)

And that would be a... metal detector?

Re:In related news... (4)

zonk the purposeful (444367) | more than 13 years ago | (#158343)

Have you seen the size of an infrared scanner? That's a lot of lube..

Good decision (3)

iamklerck (445579) | more than 13 years ago | (#158344)

Clearly this was an excellent decision by the Supreme Court. The Fourth Amendment to the Constitution isn't very hard to understand, yet our law enforcement agencies keep breaking the rules set forth by it.

In this case the thermal imager was being used to detect heat from lamps used to cultivate marijuana. The worst part is that our government shouldn't be telling us that we cannot use marijuana how we like. The only reason our government is in place is to protect us from outside harm and others in this country. Nowhere does it say that it should be protecting us from ourselves. Laws banning the home use of marijuana and other drugs should be repealed. It's clear the drugs do not cause violence, and that drug LAWS do cause violence.

Not only are these laws causing violence now, but they're also causing the government to pass more and more laws that allow law enforcement to invade our privacy and strip us of our rights. There are many other high tech devices out there in use that haven't been ruled against yet. We should consider this a victory, but don't celebrate yet because there's still a long fight ahead of us.

Re:shocking (1)

Violet Null (452694) | more than 13 years ago | (#158348)

It's shocking because Scalia doesn't exactly have the best record for being against such government intrusions.

Re:I'm just curious... (1)

Violet Null (452694) | more than 13 years ago | (#158349)

This gets +4?

If a cop stands next to me and listens to me talk to someone on the telephone, does this violate my rights under the 4th Amendment? Of course not.

Yet if he uses a wiretap device to listen to my communications, which is, after all, just another form of listening, it does. Discuss.

Re:The importance of strict constructionists (3)

Violet Null (452694) | more than 13 years ago | (#158350)

You're referring to the same Justice Scalia who thinks that the police can conduct unreasonable and pointless arrests for fine-only misdemeanors, such as driving without a seatbelt, right?
The man has some good rulings, but over the long term, I don't think I'd rejoice if another one of him was put on the court...

Re:What I don't understand... (5)

Violet Null (452694) | more than 13 years ago | (#158351)

It's the _expectation_ of privacy. (Most) people understand sight - you put them in a situation, and they immediately understand where they can be seen, where they can't, etc; they 'know' where they are private to do what they want. Ditto with hearing. If I'm in an area where I can't be seen by the human eye, and I can't be heard by the human ear, I have a certain expectation that that area is private. (Most) people do not worry about infrared signatures, parabolic hearing devices, or the like, and so use of those tends to violate the expectation people have to privacy.

5-4? (1)

sketerpot (454020) | more than 13 years ago | (#158352)

Are there actually 4 justices who don't realize that this is just a high-tech extension of searching your home? It's just that the police don't actually come in to your home to do it.

This raises my opinion of those 5 justices in the majority.

Re:Good decision (1)

sketerpot (454020) | more than 13 years ago | (#158353)

And have you seen how many billions of dollars the government is spending to throw people who use drugs in jail?

As you said, I think that the drug laws do more harm to society in general than drugs themselves do. (I won't argue this on an individual basis because someone will probable come up with someone who got high and jumped off a cliff.) I think that if we want to be protected from ourselves, we should do the protecting.

Just in time (1)

Mostly Monkey (454505) | more than 13 years ago | (#158355)

Now I don't have to worry about cops searching my house, and finding my overclocked computer!

This ruling is a mistake (1)

ColGraff (454761) | more than 13 years ago | (#158356)

It is my opinion that the Supreme Court has made an mistake. It is the function of the police, not only to apprehend criminals, but to prevent if possible criminal acts from taking place. It is perfectly legitimate, for example, for a cop to take a good hard look at a house from which loud music and pot odors are coming. That is because simply looking from outside the house is not invasive. Likewise, examining a house from the outside with thermal imaging gear is not invasive in the sense of a true search, and should not require a warrant.

Uh, don't you need a warrant? (2)

ColGraff (454761) | more than 13 years ago | (#158357)

"This could lead to arresting people randomly."

Uh, don't you need a warrant to arrest someone? And just cause? I seem to recall that being in the Constitution somewhere...

Re:What sucks about this (3)

Zen Mastuh (456254) | more than 13 years ago | (#158360)

Famous lawbreakers:

George Washington

Thomas Jefferson

John Adams

Thousands of other American Revolutionaries

Susan B. Anthony

Mahatma Ghandi

Jesus of Nazareth

Dr. Martin Luther King, Jr.

Phillip Zimmerman

Rosa Parks

Forgive me for forgetting that our purpose as human beings is to worship and revere the arbitrarily-chosen laws in the geographic region we happen to be born into.

What sucks about this (4)

Zen Mastuh (456254) | more than 13 years ago | (#158361)

The specific technology, Forward Looking Infrared Radar, has been successfully used to bust thousands of marijuana growing operations over the last few decades. These people's lives were ruined: they were arrested, imprisoned, fined, and subjected to forfeiture of their assets. Between the fines and the asset forfeiture, police nationwide have bought more helicopters, tactical weapons, body armor, dogs, and other Rambo toys--all to use against Americans in the War on (Some) Drugs.

When a law or investigative procedure is found to violate basic Constitutional rights, the ruling should be applied retroactively all the way back to the enactment of said law or investigative procedure. Anyone caught by FLIR should have their fines reimbursed, criminal record expunged, and their assets returned--including all of the plants they were growing, down to the specific strain and height. What sucks is that this won't happen--the case just gets remanded to the lower court, who can decide in this one case whether there was any other evidence available to justify a warrantless search. Anybody who wants this applied to their case will have to hire an expensive lawyer: a ridiculous proposition for someone who no longer has a home to mortgage because it was seized.

This WO(S)D has been nothing but a gateway to a full-blown police state. I'm hoping that this ruling marks the end of the "But Won't Someone Think of the Children???" era that characterized the 80's and 90's and launches the "But Won't Someone Think of the Constitution???" era.

wrong (1)

G. Mercator (457768) | more than 13 years ago | (#158362)

Anybody can use thermal imaging - it got some use in the 80's for energy would scan a house and use it to detect heat leaks.

The Supreme Court got this right in terms of privacy, wrong in terms of science. Once again, a complex case turns on a fine point of law.

In related news... (5)

turbine216 (458014) | more than 13 years ago | (#158364)

the same supreme court panel also voted 8-to-1 in favor of anal probing as a means of gathering evidence. personally, i'll take the infrared scanning any day.

Not so surprising... (2)

azaroth42 (458293) | more than 13 years ago | (#158365)

Consider that listening devices are not legal. This is simply an extension of it into visual devices. Excellent that they did make the right decision though. (for once)
-- Azaroth

Re:So the public can use thermal imaging technolog (1)

AsylumWraith (458952) | more than 13 years ago | (#158370)

To my knowledge, the only group of people in the US that can use thermal imaging technology, aside from reserachers, etc, is the military. And they're not allowed to scope out your house.

public use? (2)

marche U (459365) | more than 13 years ago | (#158371)

"Where, as here, 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," Scalia wrote.
So, if this was in "general public use", it wouldn't have been classed as a search, and hence "reasonable"? I'm confused.

Re:Real importance is Human cloths scanners for gu (1)

negativenine (459409) | more than 13 years ago | (#158372)

I'm sure that every copy thinks about seeing thermo porn, it must be the reason that there is such a following, the cops look in my window and they're like oh yeah I see the heat hanging between his legs. But really if people weren't armed or doing things that are against the law they probly wouldn't be arested, but probly is a broad term, and it only prevents home invasion but it doesn't prevent person to person searches which could be covered by probible cause. I wonder if that would hold up in court

Re:I'm just curious... (2)

Drizzten (459420) | more than 13 years ago | (#158373)

"Yet all they've done here is use a device to percieve the radiation emitted from a surface, very little different from taking a picture of it, or looking at it."

No, the important thing here is that they can observe you in your home, doing whatever private things you wish to do, without a warrant to do so. Looking at your walls is unimportant since they are out in the public view. Feeling heat on the walls is irrelevant because unless you can deduce the shape and signature of the object emitting the heat, all you know is that something is there. But by observing the radiation emitted from your house they can come to any number of conclusions based on the number of objects "seen," their movement, their shape, their actual heat intensity, etc. This is no different, IMHO, than being required to ask a judge for a wiretap.
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