New Prying Technology Winds Up in Court ; Public Officials React to Wider Surveillance with New Legislation

Article excerpt

Nicodemo Scarfo Jr. thought he had the ultimate snoop-stopper. When police raided his home two years ago, they couldn't read his computer files because he'd scrambled the data. But the FBI had another trick up its sleeve.

Armed with a warrant, agents sneaked into the house and placed a secret device on his computer to record his keystrokes. That allowed officers to figure out his passwords, open his files, and gather enough evidence to arrest him for running gambling and loan- sharking operations for the Gambino crime family.

That's the latest in a string of high-tech coups that have given law-enforcement a decided edge in reducing crime. From cameras that recognize faces of criminals and e-mail reading systems to tracking devices that can pinpoint the location of a cellphone, police are on the verge of sweeping the streets in ways George Orwell never dreamed of.

There's just one problem.

Their high-tech gadgets may undermine constitutional guarantees to the right of privacy. For years, privacy advocates have warned that new technologies were eroding individual rights. Now, courts and elected officials are beginning to listen.

In June, the US Supreme Court issued the first salvo, ruling that police had to obtain a search warrant before scanning homes with thermal imaging devices. Now, privacy advocates are waiting to see how lower courts will react. Soon, a federal district judge in the Scarfo case will determine whether police need a simple search warrant or a more difficult-to-get wiretap warrant to use keyboard loggers.

If the judge disallows the computer evidence, Mr. Scarfo could go free. If the judge allows the evidence, some say privacy will wither. "We're on the cusp of a surveillance society," warns Barry Steinhardt, associate director of the American Civil Liberties Union (ACLU), based in New York. "The technology is quickly endowing law enforcement and private industry with superhuman capabilities."

After years of seeing their warnings go unheeded, privacy advocates cheered when the Supreme Court voted 5 to 4 that a thermal imaging device trained on a suspect's house constituted a search. Police used the technology to determine that the suspect was using heat lamps to grow marijuana indoors. But the court ruled that such technology required a warrant.

"The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy," wrote Justice Antonin Scalia in the majority opinion.

But for every court decision restricting the use of such devices, several new technologies come along, threatening to shrink privacy even more. Consider:

* By Oct. 1, the nation's wireless telephone companies are supposed to have the ability to pinpoint the location of their subscribers who make emergency 911 calls on specially equipped phones. The system would help dispatchers obtain help to motorists quickly and accurately. But privacy experts say the system will be used to track users surreptitiously in nonemergency situations. The wireless carriers have asked the Federal Communications Commission for more time to implement the system.

* Visitors to the Ybor entertainment district in Tampa, Fla., are routinely scanned by 36 cameras mounted on utility poles and equipped with face-recognition technology. The system compares the faces in the crowds with an image database of wanted criminals and missing children. When it senses a match, it alerts officers who determine whether it's close enough to pursue. Already deployed in a London neighborhood, the technology has cut crime there 40 percent. But privacy advocates complain that honest citizens are being subjected to a virtual lineup.

If satellite tracking and face-recognition software seem impressive, hold onto your computer monitors. …