CDR: Re: police IR searches to Supremes

[Steve Furlong]

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 at acmenet.net