CDR: police IR searches to Supremes
Supreme Court to hear thermal peeking case Tuesday, 26 September 2000 13:36 (ET) Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND WASHINGTON, Sept. 26 (UPI) - The Supreme Court is getting ready to wrestle with the competing values of police technology and privacy in a case that could affect the scrutiny under which Americans live their lives. In a short order Tuesday, the justices said they will hear argument on whether law enforcement use of a "thermal imager" to detect heat sources inside a home violates the Constitutions ban on unreasonable searches, especially when the surveillance is conducted without a warrant. A final decision in the case could also determine how much "passive" intrusion is constitutional in a number of other applications as police deploy ever more sophisticated devices in the 21st century. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers and effects" and bans "unreasonable searches and seizures." Though the court did not say when it would hear the case, argument probably will occur in January. The case accepted by the justices involves an Oregon man arrested in 1992 for growing marijuana in his house. Having a marijuana plantation inside a building usually involves "grow lights" that give off considerable heat. Federal officers were led to the home of Danny Lee Kyllo in Florence, Ore., because his divorced wife had been arrested by state law enforcement on drug charges. Kyllo and his former wife occupied two of the homes in a triplex building. As part of the investigation, an agent from the U.S. Bureau of Land Management asked an Oregon National Guard staff sergeant to take a thermal reading of Kyllos dwelling. While seated in a parked car on a public street, the sergeant used an AGEMA Thermovision 210 thermal imaging device to scan the triplex. The imager detects heat escaping from a house. Court records say he staff sergeant determined that Kyllos building was giving off a lot more heat than neighboring buildings. Using the information provided by the staff sergeant, the federal agent persuaded a U.S. magistrate to issue a search warrant for Kyllos home. A subsequent search discovered an indoor marijuana growing operation, firearms and drug paraphernalia, again according to court records. Kyllo was indicted on one count of growing marijuana, and entered a "conditional" guilty plea in U.S. District Court. Under an agreement with the prosecution, the plea would stand only if an appeals court failed to suppress the evidence from the thermal imager. Though the case went up and down the appeals court ladder twice, the appeals court eventually decided to let the evidence stand, saying that Kyllo had failed to establish that he had a reasonable "expectation of privacy" for the heat emissions from his home. The defendant "made no attempt to conceal these emissions, demonstrating a lack of concern with the heat emitted and a lack of subjective privacy expectation in the heat," the appeals court said. Kyllo then asked the Supreme Court for review. The case "raises the fundamental question of whether the Fourth Amendments guarantee of personal security in ones home must yield to scientific advances that render our traditional barriers of privacy obsolete," Kyllos court-appointed attorney told the Supreme Court in a petition, "or whether there is a core of privacy that police technology may not pierce without a warrant despite its capability of doing so."
"A. Melon" wrote:
Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND
<<snip most of the article>> I don't see how any rational mind could see this type of search as allowed under the US 4th Amendment. Too bad no jurist has asked my opinion. But one line in the article pissed me off:
A subsequent search discovered an indoor marijuana growing operation, firearms and drug paraphernalia, again according to court records.
Kyllo was indicted on one count of growing marijuana,
Since Kyllo wasn't indicted on firearms charges, we must assume that the firearms were legal. Why, then, were they mentioned? Why didn't Kirkland also mention that a search found eating utensils and blue jeans? The American establishment press's bias as regards firearms is a constant irritant. Snarlingly, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
Probably mentioned because of its sentence enhancement potential. See 18 USC 924(c)(1)(A), adding five years to sentences for drug crimes when a firearm's involved. MacN On Tue, 26 Sep 2000, Steve Furlong wrote:
But one line in the article pissed me off:
A subsequent search discovered an indoor marijuana growing operation, firearms and drug paraphernalia, again according to court records.
Kyllo was indicted on one count of growing marijuana,
Since Kyllo wasn't indicted on firearms charges, we must assume that the firearms were legal. Why, then, were they mentioned? Why didn't Kirkland also mention that a search found eating utensils and blue jeans? The American establishment press's bias as regards firearms is a constant irritant.
Snarlingly, SRF
-- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
On Tue, 26 Sep 2000, Steve Furlong wrote:
Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND
<<snip most of the article>>
I don't see how any rational mind could see this type of search as allowed under the US 4th Amendment. Too bad no jurist has asked my opinion.
Well, I think that as long as a conventional photograph is taken from a public place, it does not constitute a punishable breach of privacy. What's so very different about doing the same thing with IR? Sampo Syreeni <decoy@iki.fi>, aka decoy, student/math/Helsinki university
Sampo A Syreeni wrote:
On Tue, 26 Sep 2000, Steve Furlong wrote:
Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND
<<snip most of the article>>
I don't see how any rational mind could see this type of search as allowed under the US 4th Amendment. Too bad no jurist has asked my opinion.
Well, I think that as long as a conventional photograph is taken from a public place, it does not constitute a punishable breach of privacy. What's so very different about doing the same thing with IR?
This is pretty much the same issue as all uses of technology to gather and process information in ways that unaided humans cannot. The modern-day interpretation is that the Constitution and Bill of Rights do not explicitly mention privacy rights because the Founders (that's shorthand for "Founders of the American nation", generally referring to the authors of the Declaration of Independence, the Constitution, and so on) saw no need for it. Anyone could achieve privacy from government intrusion by conducting his business in his own home with the windows shut or by going into a field to prevent evesdropping. If someone was attempting to watch or listen to you, it would generally be obvious, and your opportunity to watch him would be equal to his opportunity to watch you. As regards data collection, it was certainly possible even two centuries ago. It was very labor-intensive, though. Even in the first half of the 20th century, when the FBI wanted to build a case against, typically, a corporation, they needed to bring on hordes of specialists to plow through the masses of data. That's presumably the reason for the FBI's former requirement that all agents be either accountants or lawyers. And of course the suspect would be aware that his records were being examined. Nowadays, it need hardly be said, networked computers can keep track of an astonishing mass of data on _everyone_, with hardly any personal effort on the part of the snoops. Going back to the early days of our Republic, it was _possible_ for the cops to find out all of a citizen's purchases, for instance, but it would be so much work that it was hardly ever done. Moreover, it would be very likely to get back to the citizen, which would at least let him know that his privacy had been violated. The common thread in all this is that until recently, while it might not have been possible for a person to prevent all government investigation of his affairs, it was at least possible for him to know about the investigation and either protest it or change his behavior. This is another possible reason that no explicit right to privacy is mentioned in the Constitution. And of course there's the 9th Amendment, which clearly states that the Bill of Rights is not an exhaustive list. Now, to finally tie this back to the case of the IR scan of the house, the police used a means of scanning which greatly extended human senses to invade the privacy of the man's house. In part of the article which I snipped (which is to say, the entire article) someone, a judge or prosecutor, said that this snooping was legitimate because the man took no measures to prevent the excess heat from escaping. That's a stupid line of reasoning on two bases. First, the cost to protect a one-family house from IR, electromagnetic, audio, and so on snooping adds about half a million dollars to the cost of a new house. The cost to retrofit an existing house is high enough that it's cheaper to tear it down and rebuild. No, I don't recall the source of that figure, but it showed numbers for an EM cage around the entire house, special windows, super-thick insulation, and the like. Second, in the case of IR snooping, if a house is generating more heat than its neighbors, it's going to have either a higher overall temperature or a very high temp spike for the "bleed line". Heat can't just be shielded by putting heavy curtains on the windows. So, a hundred lines later, does that answer your question as to why the IR scan was different than a conventional photo? I'd like to work this up into an article for publication. Right now, though, I have to (a) earn some money, (b) finish a set of problems on contract law, and (c) clean up after the cat, who got into something. Ta, SRF -- Steve Furlong, Computer Condottiere Have GNU, will travel 518-374-4720 sfurlong@acmenet.net
Sampo A Syreeni wrote:
On Tue, 26 Sep 2000, Steve Furlong wrote:
Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND
<<snip most of the article>>
I don't see how any rational mind could see this type of search as allowed under the US 4th Amendment. Too bad no jurist has asked my opinion.
Well, I think that as long as a conventional photograph is taken from a public place, it does not constitute a punishable breach of privacy. What's so very different about doing the same thing with IR?
Or hearing a scream from inside a building? Or *listening* for a scream from inside a building? Most people on this list will be angry at the police action because we don't see any reason why growing hemp in your room should be a crime. But the police in question do think it is a crime (or pretend to think it is a crime because if they didn't they would lose their job). That's got nothing to do with whether or not it is OK to look at someone's house with a fancy camera. If you, or the police, want to take photos of my house, go ahead. I can't stop you. It's not invisible. You can see it from the train (though not from the street - which messes up parcel deliveries - some of them won't get out of their vans if they can't see the front door...). It is painted yellow. Sometimes there are bright lights on. Sometimes it gives off heat. What do I care? It isn't my heat any more - I've just vented it into the atmosphere. If I cared about it I guess I'd get insulation. Or low-temperature lighting. Talking of which there is a hydroponics shop about a mile from where I live. I went in once. Usually gardening shops (like DIY shops) have a mixture of older people & young couples starting out in a new home. The clientele here was strangely different... Ken
----- Original Message ----- X-Loop: openpgp.net From: Sampo A Syreeni <ssyreeni@cc.helsinki.fi> To: Multiple recipients of list <cypherpunks@openpgp.net> Sent: Wednesday, September 27, 2000 3:52 AM Subject: Re: police IR searches to Supremes
On Tue, 26 Sep 2000, Steve Furlong wrote:
Supreme Court to hear thermal peeking case By MICHAEL KIRKLAND
<<snip most of the article>>
I don't see how any rational mind could see this type of search as allowed under the US 4th Amendment. Too bad no jurist has asked my opinion.
Well, I think that as long as a conventional photograph is taken from a public place, it does not constitute a punishable breach of privacy. What's so very different about doing the same thing with IR?
Sampo Syreeni <decoy@iki.fi>, aka decoy, student/math/Helsinki university
You probably don't understand how this IR technology works. And you almost certainly don't understand how American police are SUPPOSED to treat such evidence. This system merely allows one to measure the temperature of the outside surface a building without touching it. (modulo emissivity issues). Alone, that tells you practically nothing about the contents of the building. Now, American police are supposed to work on the standard of "probable cause." While, thank heaven, I'm not a lawyer, I have experience with the high level of dishonesty in various police-type organizations in America. "Probable cause" OUGHT to mean that the police have determined that, more likely than not, a crime is being committed as evidenced by a particular piece of evidence. But evidence of a warm house is just and only that: Evidence of a warm house. That warmth may be due to no more than a lack of insulation, a mis-set thermostat, an invalid who requires higher temperature to feel comfortable, etc. No, the problem is that the cops take what would constitute reasonable evidence of a warm house, and parlay it into supposed "probable cause" that a crime is being committed. Totally bogus concept. Extreme stretch. What the police are REALLY doing is "wowing" some marginally-intelligent judge with high-tech, diverting attention from the fact that the evidence doesn't actually support what it would need to support to obtain the warrant.
On Wed, 27 Sep 2000, jim bell wrote:
You probably don't understand how this IR technology works.
I do, actually. It's not all that complicated.
Now, American police are supposed to work on the standard of "probable cause." While, thank heaven, I'm not a lawyer, I have experience with the high level of dishonesty in various police-type organizations in America. "Probable cause" OUGHT to mean that the police have determined that, more likely than not, a crime is being committed as evidenced by a particular piece of evidence. But evidence of a warm house is just and only that: Evidence of a warm house.
I was neither defending a raid based on IR imaging (which I think is reprehensible behavior, akin to racial profiling), just as I'm not advocating extended police powers in case of drug offences (I *am*, after all, an abolitionist). Sampo Syreeni <decoy@iki.fi>, aka decoy, student/math/Helsinki university
participants (6)
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A. Melon -
jim bell -
Ken Brown -
Mac Norton -
Sampo A Syreeni -
Steve Furlong