By Warren Richey writer of The Christian Science Monitor
The Christian Science Monitor
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. …