Pubdate: Wed, 21 Feb 2001
Source: Washington Post (DC)
Copyright: 2001 The Washington Post Company
Contact:  1150 15th Street Northwest, Washington, DC 20071
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Website: http://www.washingtonpost.com/
Author: Charles Lane, Washington Post Staff Writer

JUSTICES HEAR OREGON CASE ON HIGH-TECH SURVEILLANCE

Among the many new tools modern technology has put at the disposal of law 
enforcement is the Agema 210 thermal imager, a device officers can point at 
a house to measure heat emanating from inside. Police use them because 
sometimes a suspicious heat flow can be evidence of criminal conduct.

That was the situation on a winter evening in Oregon in 1992, when federal 
officers used an Agema 210 to help them determine that the unusual heat 
pattern coming from Danny Kyllo's house was produced by high-intensity 
lamps that Kyllo was using to illuminate an illegal indoor marijuana nursery.

Indicted for manufacturing marijuana, Kyllo went to court, challenging the 
evidence produced by the thermal imaging device. He asserted that the 
officers were required by the Constitution to get a search warrant before 
they aimed it at his house.

Lower courts agreed with law enforcement officials that the use of the 
thermal imager did not require a warrant, but the Supreme Court decided to 
hear Kyllo's appeal, apparently to take its own look at the question of how 
much privacy citizens have a right to expect at home in an era when 
technology can virtually peer through walls.

The court's precedents connect the warrant requirement to the degree of 
privacy a reasonable person would expect in a given situation.

The rule was established in a 1967 case in which the court held that police 
needed a warrant to place an electronic eavesdropping device on the outside 
of a public telephone booth.

During oral arguments on the case yesterday, Kyllo's attorney, Kenneth 
Lerner, attempted to persuade the justices that, if anything, the 
expectation of privacy was even greater in one's home, and that the thermal 
imaging device, though it does not produce an X-ray-like photograph of what 
is going on inside, gives the government so much private information that 
its use amounts to "spying."

In generally skeptical questioning from the bench, several of the justices 
wondered how different the potential invasion of privacy created by heat 
imaging technology might be from the intrusion created by more familiar 
devices such as binoculars or night-vision goggles.

Justice John Paul Stevens asked Lerner if the police would need a warrant 
before dangling a thermometer from a long pole to measure the temperature 
of a rooftop.

"Obviously I don't think that we would prohibit things like thermometers or 
watches or things that we typically use in our daily lives," Lerner conceded.

Arguing for the United States, Assistant Solicitor General Michael R. 
Dreeben noted that the thermal imager "does not penetrate the walls of the 
house, it does not reveal particular objects in the house," but rather 
creates a rough picture of "heat gradients" that have already radiated 
outside the house. Citizens may not reasonably expect that the heat "on the 
exterior surface of their walls" should be kept private, Dreeben said.

"I think there is a reasonable expectation of privacy that what you're 
doing in your bathroom is not going to be picked up when you take a bath by 
somebody with one of these [thermal imaging devices]," Justice David H. 
Souter countered.

Dreeben responded by noting that the images produced by an Agema 210 are 
too vague to create such a risk: "What you're doing in your bathroom is not 
picked up by the thermal imager," he responded.

Lerner, however, seemed to score a point when he suggested that the 
justices should keep the inevitable progress of technology in mind when 
they rule on a case involving the relatively murky images generated by 
current devices.

"The government's test is really going to lead down a difficult road for 
this court," he said. "When will information become . . . specific enough 
that it should be protected?"
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