Supreme Court Update:
Privacy in the Home Defended (as long as the technology
in question "is not in general public use")
The Supreme court, in a recent 5-4 ruling, offered a powerful, yet disturbing judgement, limiting the use of invasive technologies by the police to probe our homes without a warrant. Evoking and expanding our Fourth Amendment rights to privacy, their intentionally forward looking ruling limited what is considered a reasonable search and established what the judges have referred to as a "bright line" to defend the sanctity of our homes as a refuge of privacy against present and future high-tech invasions. Yet, the bench also put some bizarre wording into the ruling that may open up future abuses of privacy as technologies of surveillance improve with time.
The court case that brought this ruling involved the use of thermal imaging by the police to detect heat emanating from the home of a suspected marijuana grower. The implications of the ruling, however, extend broadly to the issue of privacy in the home and the role of technology in infringing on this constitutional right. For the benefit of the Zebrameat community of readers, I offer some commentary on this ruling, including some key quotations from both the majority and minority opinions (as excerpted from excerpts in the New York Times, June 12, 2001, p. 21).
In the majority opinion, written by Justice Scalia, it was first established that visual surveillance of the home is "unquestionably lawful." In short, it has already been firmly established in case law that one cannot expect the police to avert their eyes as they pass a private residence. By the same token, the normalcy of air travel means that one cannot expect visual privacy from above our homes either. In other words, what anyone can reasonably expect to be able to see with the naked eye is permissible as surveillance without a warrant. In ruling against the use of thermal imaging in this case, Scalia argues that it "involves officers on a public street engaged in more than naked-eye surveillance of a home."
Of course, there is a wide spectrum of technologies that lay between the "naked-eye" (which we can argue is a sort of technology) and high-tech devices. So how much use of technology is too much? How do we distinguish between the use of normal, everyday devices, such as glasses (a low-tech device) and so-called "high-tech" devices such as thermal imaging? Here is where the ruling begins to gets weird. Perhaps anticipating such issues—that, for instance, many people wear eye glasses which enhance what the naked-eye sees—or, perhaps, imagining a future where our everyday technology is improved in ways we cannot yet imagine, Scalia offers the following qualification in the ruling:
"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area' constitutes a search—at least where (as here) the technology in question is NOT IN GENERAL PUBLIC USE."
"In general public use." So it seems the court saying that as long as the use of a technology is in "normal" use (like eyeglasses or hearing aids), then it is acceptable to use them in a search or surveillance of the home. Or are they anticipating that our standards of privacy will evolve and change as technology changes? The notion of "general public use" is clearly very ambiguous. Perhaps this means that if everyone started carrying around thermal imaging devices, or if x-ray glasses become widely available, then it would be OK for the police to do the same?
Such issues are raised in the dissenting opinion, written by Justice Stevens who argues that the ruling goes too far. First, there is a difference, Justice Stevens argues, between detecting something on the outside of a home and probing the private lives of people on the inside. He argues that it is reasonable to be able to monitor what comes out of a private home—whether it be heat, toxic emissions, or radiation—and to do so is not only in the realm of the reasonable, but also the neighborly. "Indeed," Stevens writes, "the ordinary use of senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here."
Thus, the minority opinion rejects the idea that monitoring heat emissions from a home isprotected by the Fourth Amendment. Stevens writes: "Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building." The expectation that such odors and emissions would remain private is thereby rejected as both unreasonable and implausible.
Stevens goes much further though, arguing that such monitoring is actually in the public interest and "monitoring such emissions with 'sense-enhancing technology,"... is an entirely reasonable public service."
"Just as 'the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public,' so too public officials should not have to avert their SENSES OR THEIR EQUIPMENT from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community." (Justice Stevens)
To repeat: "Public officials should not have to avert their senses or their equipment..."! Stevens goes on to argue that it is reasonable for the rare marijuana grower to simply insulate his house better, in order to protect himself and avoid detection from outside the home against a "reasonable" monitoring by high-tech means. As long as such devices do not enter into the home itself, so the argument goes, then they should be permitted. It is, after all, in the "public interest." This is not what the court has ruled, rather they seem to defend privacy at all costs, calling this sort of use of technology an unreasonable search.
But what are we to make of the line in the majority opinion where they qualify their ruling and state: "at least where... the technology in question is not in general public use?" Here the dissent raises a good point, and one that may come to haunt us in years to come. Justice Stevens points out "this criterion is somewhat perverse because it seems likely that the threat of privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available." Just because the technology is widely available does not mean that it is right to use it.
As I look up from my computer and gaze out my window and see my neighbors sunbathing outside, I too wonder at the perversity of this ruling. Yes, they can reasonably expect that I might see them, but what if it were different? Does this issue of being "in general public use" mean that our Fourth Amendment rights only extend as far as what we, the general public, are capable of devising to intrude into each other's lives? Does this mean that if we all become expert hackers and spies, able to pry deeply into each others personal lives, that it will be OK for the government to do so too? According to this recent ruling—which seems on the surface to be defending our privacy—this would appear to be the case.
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