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Privacy Going To Pot
Pubdate: Thu, 04 Nov 2004
Source: Calgary Sun, The (CN AB)
Copyright: 2004 The Calgary Sun
Contact: http://www.fyicalgary.com/calsun.shtml
Details: http://www.mapinc.org/media/67
Author: Kevin Martin
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
PRIVACY GOING TO POT
Camera in the Sky Keeping an Eye on Us Please and Thanks, Chalk up a win
for Big Brother in the Supreme Court.
The nation's top judges ruled last Friday that Mounties did nothing wrong
in using a forward-looking infra-red (FLIR) camera to weed out a pot grower.
The Supreme Court justices unanimously said the camera -- which records
images of thermal energy or heat radiating from buildings -- was a
legitimate investigative technique.
As a result, they overturned an Ontario Court of Appeal decision that
Walter Tessling was a victim of an unlawful search of his property.
For most Canadians, Tessling's case is just another example of a crook
trying to get off on a technicality.
True, there was no doubt Tessling was guilty of growing 120 marijuana
plants in his Kingsville, Ont., home worth about $20,000.
That's exactly what cops found when they raided his home using a search
warrant approved mostly because of the results of the FLIR imaging of his home.
The "sky cam" showed temperatures soaring inside the home to keep the
hydroponic marijuana crop growing.
The Ontario appeal court called the surveillance tactic "almost Orwellian"
and struck down the search warrant, resulting in an acquittal for Tessling.
But the Supreme Court judges differed in their opinion.
In their written ruling, the nation's top jurists said Mounties weren't
invading the privacy of Tessling's home with the camera, but only doing
exterior surveillance.
"Whereas the Court of Appeal treated the imaging as equivalent to a search
of the home ... it's more accurately characterized as an external
surveillance," they wrote.
The judges said any information gleaned "may or may not be capable of
giving rise to an inference about what was actually going on inside."
They continued: "FLIR technology in its present state of development,
permit any inferences about the precise activity giving rise to the heat."
But that's the true difficulty in their decision.
Because the technology isn't advanced enough to determine what was going
on, inferences were drawn that it must be bad.
The warrant to search Tessling's home was based simply on the comments of
two police "informants" and photography of the home.
It's a safe bet the RCMP would've been laughed out of court by the judge
who eventually OK'd the search warrant if they were relying on often
untrustworthy informant information.
So the FLIR results were obviously the catalyst for the judge to approve
the raid.
But what if Tessling was the victim of misinformation (as has often
occurred in the past) and the FLIR imaging was picking up something else --
perhaps a hot tub, or just poor insulation.
While Tessling was clearly guilty, the fallibility of the technology shows
that may have been more luck than design in the police investigation.
While cops need all the tools available to curtail what it becoming a
problem of epidemic proportions, courts should be leery about being too
quick in allowing high-tech gadgets to become used in a wide-spread manner.
Even the Supreme Court itself acknowledged that, in noting that, as
technology advances, judges will have to revisit this same issue time and
again.
"Technology must be evaluated according to its current capability and its
evolution in future dealt with step by step," they said.
It would seem this time the top court took a misstep.
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