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Court Chooses Privacy over Technology

Photonics Spectra
Aug 1998
Aaron J. Hand

Prosecutors have asked the 9th US Circuit Court of Appeals to reconsider and rehear a case in which a panel of the court recently upheld privacy over technological snooping. In an effort to establish a federal ruling on the Constitution's Fourth Amendment rights in the face of technological innovations, this case eventually could end up with the US Supreme Court.
The case began in 1992 when police suspected that Danny Lee Kyllo was growing marijuana plants in his home in Florence, Ore. With assistance from the Oregon National Guard, federal agents used Agema's Thermovision 210 thermal imager to measure heat emissions from inside Kyllo's house. The infrared camera measured high heat levels from what the agents suspected were lamps used to grow the plants, providing enough evidence to obtain a search warrant. The agents eventually found marijuana plants, weapons and drug paraphernalia and arrested Kyllo.
Other courts have ruled that the heat detected by thermal imagers is "waste heat" (so police can look at it freely, just as they'd look through trash cans sitting on a curb). However, the latest panel's 2-1 decision found that using a thermal imager without a search warrant violates the Fourth Amendment because it infringes on a reasonable expectation of privacy.
According to a brochure published by Agema, the Thermovision 210 can detect temperature differences as small as 0.9 °F and objects or people under natural cover as far away as 1500 ft.
Writing for the court, Judge Robert R. Merhige Jr. noted, "Even assuming that the Agema, apparently a relatively unsophisticated thermal imager, is unable to reveal such intimate details, technology improves at a rapid pace, and much more powerful and sophisticated thermal imagers are being developed which are increasingly able to reveal the intimacies that we have heretofore trusted take place in private absent a valid search warrant legitimizing their observation."
John Henry Hingson III, one of Kyllo's defense lawyers, is concerned about those more powerful and sophisticated devices. Although he is not against using advanced technologies, he said they should be used properly. "This technology is not going to get put back in the bottle," he said. "However, it's critically important that there be robust debates about the limits of new technologies. As new technologies advance, the Bill of Rights can be microshrunk."
There is still room for the use of technology, according to Hingson. "Police will definitely continue to utilize this technology, and I don't have a problem with that," he said. "I do have a problem with them surreptitiously using this technology, then hiding it to obtain a warrant without people ever knowing they're using it."

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