Pubdate: Thu, 14 Jun 2001
Source: Newsday (NY)
Copyright: 2001 Newsday Inc.
Page: A34
Contact:  http://www.newsday.com/homepage.htm
Details: http://www.mapinc.org/media/308

PRIVACY PROTECTION THE FOUNDERS WOULD HAVE WANTED

In an admirably forward-looking decision protecting privacy in a 
technological age, the Supreme Court ruled Monday that homes should be as 
safe from law enforcement's modern electronic intrusions as they are from 
old-fashioned, kick-down-the-door searches.

The court said that police in Florence, Ore., searched illegally when, 
without a search warrant, they trained a thermal sensing device on a man's 
home to see if heat was radiating. Police found hot spots in the roof and 
one wall, used that to get a warrant, searched the house, found 100 
marijuana plants growing under high-intensity lights and arrested the resident.

Writing for a 5 to 4 majority that scrambled the court's usual ideological 
blocs, Justice Antonin Scalia said technology could not be allowed to erode 
"that degree of privacy against government that existed when the Fourth 
Amendment was adopted." That's powerful reasoning.

Unchecked, technological developments in remote sensing could nibble away 
at the zone of privacy Americans enjoy until no place is safe from official 
snooping. The court was right to impose the same probable cause 
requirements on police conducting electronic searches as it requires of 
those who kick down doors.

In dissent, Justice John Paul Stevens argued there is "a distinction of 
constitutional magnitude" between "through-the-wall surveillance" which 
would be an unacceptable search inside a home and "off-the-wall 
surveillance," as in this case, where police merely gathered information 
exposed to the public outside a house. Florence police had argued that in 
detecting heat loss, their thermal imagers did not reveal any private 
information.

But as Scalia said, "all details are intimate details," inside a private 
home. He left for another day the question of how much technological 
intrusion is acceptable when the target is not a residence. But in its 
ongoing struggle to apply the Constitution's prohibition against 
unreasonable search and seizure at a time when technology is extending the 
eyes and ears of law enforcement to a degree unimagined by the 
Constitution's framers, the court Monday laid down an important marker.
- ---
MAP posted-by: Terry Liittschwager