When They Get it Right

-CTF Editorial: June 13, 2001

Sometimes they actually get it right, and when the "Powers That Be" actually do something to protect average citizen's rights, they ought to be praised for it. Even if it was by a now typically slim 5-4 ruling....

According to the Reuters News Agency, "The U.S. Supreme Court ruled on Monday that drug-searching police officers violate constitutional privacy rights by scanning a home with a heat-detecting device unless they first obtain a warrant. The court's 5-4 ruling was a setback for the U.S. Justice Department, which argued the use of a thermal imager by law enforcement officers to detect the heat emitted from a house was not covered by constitutional privacy protections."

And the Justice Department should be set back. Set back until they understand the concepts and challenges presented by new technology.

"Justice Antonin Scalia said for the court majority that when the government uses a device not in general public use to explore the details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a search and requires a warrant. He said use of the device, aimed at a private home from a public street to record amounts of heat, constituted a search."

Wisdom from Scalia. I'm stunned.

To withdraw such a minimum expectation of privacy against unreasonable searches would permit "police technology to erode the privacy" guaranteed by the Constitution, Scalia said.

More wisdom! I think my head will explode!

Scalia rejected the Justice Department's argument that thermal imaging was constitutionally allowed because it did not detect "intimate details."

Funny, but a technology that sees through the walls of my home strikes me as extremely intrusive into the "intimate details" of my life, and were this instance to be allowed, a precedent would be set that might allow even more invasive means to be employed, with technologies that we have yet to see. Scalia's understanding of this is phenomenal.

"Scalia warned that a change in the court's approach would leave the homeowner at the mercy of advancing technology, including imaging technology that could discern all activity within the home."

Way to see into the future, Your Honor.

"The case began with an investigation by William Elliott, an agent of the U.S. Bureau of Land Management, into a possible conspiracy to grow marijuana in Oregon. Suspecting that Danny Kyllo might be involved, the agent examined Kyllo's utility records and found he used an abnormally high amount of electricity -- which could suggest the use of intensity lights to grow marijuana in his house. Elliott then used a thermal imaging device from a parked car on a public street and found that unusually high levels of heat were coming from the roof of Kyllo's garage and one wall of his house. Kyllo's house emitted more heat than the neighboring houses.

Only later did Elliott obtain a court warrant authorizing a search of the house, where agents discovered an indoor marijuana-growing operation.

Kyllo pleaded guilty but moved to suppress the evidence recovered from the search of his residence, arguing that the thermal imaging device constituted an impermissible search. A U.S. appeals court ruled that use of the imager did not constitute a search. Scalia said the appeals court was wrong. He said the information obtained by the thermal imager in this case was the product of a search.

Dissenting were Chief Justice William Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor and Anthony Kennedy."

In a complete misunderstanding of the implications of new technology, "Justice Stevens said the privacy interest was 'trivial' at best. He said a homeowner who wants to engage in activities that produce extraordinary amounts of heat could conceal that from outsiders simply by making sure the home was 'well insulated.'"

Privacy is hardly "trivial", especially at this juncture in history with the rapidity of technological advances that constantly threaten it. Merely chalking the case up to the homeowner's inability to enact his own "countermeasures" against police intrusion puts us all at risk, and is at best, a serious underestimation of how the power to use technology to intrude into the home might be abused.

The sanctity of the home has historically been afforded profound protection by the courts, and I'm happy to see that the Justices responsible for the majority decision in this case could see past the drug use hysteria, to the heart of the real issue here. With personal privacy being attacked on all fronts, it's downright inspiring to see that the Supreme Court actually had our backs on this one.