I have a really hard time believing that this will pass constitutional muster if this ever the use of this device ever gets challenged or gets into the court system. One's home is generally sacrosanct -- there are some exceptions, but those are few and far between.
Law enforcement used a thermal imaging camera to detect hotspots consistent with marijuana growth inside Kyllo's house. In a 5-4 decision, the Supreme Court ruled that this was a 4th amendment violation.
I would argue the opposite. The dissenting opinion's rationale doesn't hold up in this case
> 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.
In the case of thermal imaging, you measure light waves that is already leaving the building. In the case of radar, you are actively sending in light waves to bounce off the inside and return to you.
That's certainly true using that reasoning (which, incidentally, I think is ridiculous). Of course, they could come up with a workaround. Like perhaps it's not a violation of property rights for invisible and virtually harmless waves to enter private property, and if they happen to bounce off something and come back to the source for collection and analysis, so be it.
> That's certainly true using that reasoning (which, incidentally, I think is ridiculous).
While Kyllo was obviously decided correctly, I don't think the reasoning of the dissent is ridiculous. Arguably, it's better scientifically.
Premise: It's not an unreasonable search if police stand on the public street outside a house and hear someone shout: "I killed Jake!"
Argument: Use of thermal imaging is indistinguishable from standing on the street hoping to hear a shout. Sound waves and infrared light waves are both generated inside the building, escape into public space, and are captured by passive receiving devices (ears, IR cameras). It's arbitrary to treat sound and infrared light differently.
The above may be a good example against hyper-technical reasoning in court cases (but see: everyone's support of the argument advanced by Aereo), but it's not a scientifically unsound argument.
I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search. Whether the feet physically move onto the property or not, the equipment is breaching a privacy barrier.
If you confess to murder in your own home on an ultrasonic carrier wave, and the police happen to be outside on the sidewalk pointing an ultrasonic microphone at your house, no reasonable person could deny that was a search of your home.
A visible-light camera with an audible-range microphone that coincidentally covered your home in the course of otherwise lawful activity, on the other hand, would be more in the nature of accidental eyewitness than intentional search.
When people take steps to create a private space for themselves, they judge by their own senses whether their precautions are sufficient. If I stand outside my own house and cannot see, hear, smell, or otherwise sense any activity within, I have a reasonable expectation of privacy. I typically do not use a wi-fi packet sniffer, or a FLIR camera, or a laser microphone to ensure that my activities are safe from interception from random passers-by, because they do not carry such equipment.
> If you confess to murder in your own home on an ultrasonic carrier wave, and the police happen to be outside on the sidewalk pointing an ultrasonic microphone at your house, no reasonable person could deny that was a search of your home.
What if I broadcast my guilt on un-encrypted FM radio?
Again, I think Kyllo was rightly decided. But I don't think the dissent's argument was "ridiculous." I think there's some logic to asking: why the heck should the 4th amendment treat sonic and EM emissions differently depending on their wavelength?
Because the wavelength determines whether you need to make an explicit effort to retrieve the information.
The search is not a matter of retrieving what is possible to retrieve, but is instead about intentionally breaching a privacy barrier.
As long as you have taken a single safeguard to protect yourself from casual observation, anyone circumventing that safeguard with the intention of observing you is performing a search.
Thus, if you want to make an FM broadcast, it would be prudent to do so on a frequency that is not expected to be routinely monitored. Anything that could be directly intercepted by commonly-available radio receivers, such as car radios, walkie-talkies, police scanners, or similar would not create a reasonable expectation of privacy. Anything that might cause interference in an electronic device is likewise non-private, as anyone who transmits should be aware that amateur and professional radio operators may investigate interference.
In those cases, sending your FM transmission from inside a Faraday cage, through a shielded cable, to the inside of another cage, would be sufficient precaution against casual observation that anyone hearing your signal must have been searching for it. I contend that even if the shielding is imperfect, the signal leaks, and the cops are able to monitor and record your transmissions, they are still peeking behind the fig leaf, so to speak. The instant that they become aware that the transmissions were intended to be private, all subsequent monitoring is a search.
Were it otherwise, a person not acting in his official capacity could breach the privacy barrier, and then later monitor under the presumption that no such barrier existed. A cop might take off his badge and shove a pin through the shielding on the cable into the center conductor, then put the badge back on and tune in the radio signal as though it were meant to be a broadcast.
The dissenting argument is ridiculous because the "searchiness" of an observation does not depend on some law of physics. It depends on whether you are exposing something that I wish to be private, regardless of the means by which you do it.
I would argue that if the police require any equipment in addition to the normal range of human senses to detect evidence, the use of such equipment should be considered a search.
What if the equipment is extremely common? Anyone can stand outside your home and see your WiFi networks. Should the cops need a warrant to say "from the street, I turned on my iPhone and saw a wireless network?"
What if 75% of smart phones had FLIR and people regularly used them?
NB: I'm not necessarily convinced of this. It might turn out the best way is to start at "normal range of human senses" and explicitly add to that, say by legislation.
There will always be grey areas, but I think the recording/observing equipment would need to be both common and not deployed for the purpose of gathering evidence. If some evidence was somehow in the SSID of a Wifi network, and a police officer happened to see it on a laptop, I wouldn't call that a search (although I also probably wouldn't really call it credible enough evidence to justify any further action). If some conversations were broadcast over FM radio, and a police officer happened to hear it while driving by the source, I wouldn't call that a search.
It is most certainly not a violation of property rights; radio waves are a notable exemption to normal property rights. Not to mention the fact that their are many other radio waves that already enter your private property.
They still would need to argue that it is not a 4th amendment violation.
The 4th amendment pretty clearly exists in an assumed system of private property. Searches and seizures both imply action that would normally be a violation of property rights. The quote you cited is also talking about property rights.
First thing I thought. This is exactly the same. Unless someone starts commercialising mass sales of radars, this is basically inadmissible in court.
For those who don't know, the basis for ruling thermal imaging an unreasonable search is that most people don't have high-resolution thermal imaging devices (so you can't assume you're being watched that way)
It's funny ("funny") how much police work operates like how I wrote papers in high school.
Write it from one (possibly unapproved, but convenient) source, find citations for various passages in several books after it's done, mostly by using the index to find exactly what's needed to avoid needing to read more than a couple paragraphs of each book, until the "minimum sources" number is hit.
Kyllo was about thermal imaging but the opinion is quite clear. There's a much, much stronger case for thermal imaging equipment than there is for a device which probes via radio waves.
FLIR is a special camera that detects infra-red light. IR is electromagnetic radiation that is emitted from objects with heat.
RADAR emits a more "traditional" radio wave, and then detects objects when the radio wave reflects back. Unlike FLIR (which is passive), I would consider RADAR to be active.
I would think (rather naively so) that the case against using RADAR without a warrant would be stronger, given that the government would have to actively affect your house. To play devil's advocate, the pot grower was emitting a signal in the FLIR case...
Anyone more educated than I able to cast light (haha) on this?
One nice thing about the Supreme Court is that every ruling comes with at least one (or two if the ruling is not unanimous) experts explaining the situation. And if any of the remaining Justices disagree, or feel that something was left out, of those two opinions, they can add their own.
In this case, the dissent wrote:
Unlike an x-ray scan, or other possible "through-the-wall" techniques, the detection of infrared radiation emanating from the home did not accomplish "an unauthorized physical penetration into the premises,"
and:
While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-developed technology that might allow "through-the-wall surveillance," ante, at 38-40; see ante, at 36, n. 3, this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of petitioner's home. All that the infrared camera did in this case was passively measure heat emitted.
Indeed. The ruling is quite clear that penetrating radio waves into the residence is presumed to be unacceptable. Even the dissent in Kyllo (FLIR) agrees on this point in regard to x-ray.
Your house is constantly saturated with radio waves from TV stations, radio stations, wifi etc.
What if I were to design a device that passively received reflections of these signals rather then generating it's own to achieve the same function as the device in this post.
So I now have the same result, but I am "merely" receiving reflections, rather then making my own.
There is no difference in the function, this is rules lawyering at its best.
I am willing to let police observe emissions on visible wavelengths ONLY because that is a slippery slope to not being allowed to look into windows.
Anything you need a device to view is not ok to view without a warrant, no matter the technique.
If you look at Gizmo's quotes, I think it's pretty clear they considered these kinds of technology tricks in deciding Kyllo, and 'taking the long view' that high tech collection of passively emitted information requires a warrant. I think the general approach is it's the result that matters, not the specific approach, e.g. 'expectation of privacy'.
