High-tech police: Big Brother with a badge?

British authorities in Colonial America didn't use high-powered listening devices, satellite tracking systems, and keyword dragnets on the World Wide Web to solve suspected crimes against the English crown in the 1770s.

They just broke down doors, rifled through a homeowner's personal papers, and used what they found as evidence.

It was a highly efficient and effective investigative technique.

But such clear abuses of privacy convinced the nation's Founding Fathers to write the Fourth Amendment to the US Constitution, which guarantees a right to be free from "unreasonable searches and seizures."

Today, the US Supreme Court is being asked to decide to what extent that Colonial standard of privacy still applies in a world where high-tech cops are increasingly able to peer without detection into the most private aspects of American life.

For example, government officials have the ability to observe the activities in any backyard or on any rooftop terrace from satellites orbiting the earth. They can detect the presence of mere molecules of illicit narcotics, explosives, and other substances with powerful sniffing machines. They can eavesdrop on conversations in a locked room by training parabolic listening devices on the windows. And they can monitor computer messages, including rifling through e-mail accounts in search of evidence.

While law-enforcement agents are able to quickly and efficiently investigate a wide range of suspects, privacy advocates say the high court must draw a clear line to prevent modern-day sleuths from becoming Big Brother with a badge. "Anyone who cares about privacy ought to be concerned about the advance of technology," says James Tomkovicz, a constitutional law professor at the University of Iowa.

At issue before the court is the case of Danny Kyllo of Florence, Ore., whose home was raided by drug agents after a thermal-imaging device showed a higher amount of heat emanating from Mr. Kyllo's house than neighboring structures.

The device detects invisible infrared radiation and shows it as visible light. Drug agents suspected the heat was being produced by banks of light bulbs in a marijuana-growing operation inside Kyllo's home.

Armed in part with the thermal-imaging observations, agents obtained a search warrant and raided the Kyllo home. Inside they found more than 100 marijuana plants, weapons, and marijuana-growing equipment. Kyllo was charged with manufacturing marijuana.

His lawyers fought the charge, arguing that the agents had engaged in an illegal search when they used the thermal-imaging device without a warrant.

They said the device detected invisible evidence of activities under way in a private home, evidence that could have only been gathered by an unaided human investigator through a physical search of the home.

"The chief evil the framers of the Constitution were trying to protect against was physical entry into the home, and if technology is performing the same thing without having to physically enter, then that is what the framers meant to stop," says Kenneth Lerner, Kyllo's attorney.

"The real question is: Are we going to impose limits on technology or are we going to let technology overrun our privacy?" Mr. Lerner says.

Police 'simply took a picture'

Government lawyers counter that the device was deployed from an open car window parked in the street in front of the house.

The device simply took an infrared picture of the house, which was no more intrusive than agents photographing the house during surveillance, they say.

A federal appeals court panel

voted 2 to 1 to uphold the use of such thermal-imaging devices without a warrant.

They ruled that no warrant was needed, provided such devices only measure heat activity outside the house and are not used to reveal the activities of heat-producing humans inside the house.

Courts divided on issue

Federal appeals court judges in four different circuits have reached similar decisions. But state supreme court justices in Washington, Pennsylvania, and Montana have barred the use of the devices without a warrant.

"Whatever the 'star wars' capabilities this technology may possess in the abstract, the thermal-imaging device employed [in Kyllo's case] intruded into nothing," writes US Circuit Judge Michael Hawkins in his 2-to-1 opinion.

The decision says that because no "intimate" information was gathered by the device, the surveillance did not amount to a violation of Kyllo's privacy rights.

In a dissent, Judge John Noonan writes that Kyllo's expectation of privacy embraces his entire house, including any infrared heat generated by activities under way behind closed doors inside his house.

"The first reaction when one hears of the (thermal imaging device) is to think of George Orwell's '1984,' says Judge Noonan in his dissent. "Although the dread date has passed, no one wants to live in a world of Orwellian surveillance."

Professor Tomkovicz suggests in a friend-of-the-court brief that the high court use the Kyllo case as a means to establish a firm constitutional principle that would aid lower courts dealing with privacy concerns over increasingly effective high-tech snooping devices.

He says one way to safeguard Fourth Amendment protections would be to analyze each case from the perspective of a law-enforcement operation conducted in the 1700s.

If the type of investigative information sought through technological means could only have been obtained through a physical search of a home in the 1700s, police should be required to obtain a warrant first, he says.

Tomkovicz says the Kyllo case is a prime example.

"At the time of the Framers, you couldn't know if a home was producing excessive heat without physically breaching the property or visiting the home," he says. "The only reason they can do this is technology."

(c) Copyright 2001. The Christian Science Publishing Society