Suppose one day you’re sitting in your house when you look out and notice this guy standing on the sidewalk, pointing something that looks like a camera in your direction. So you go outside and ask him what he’s doing.
“Not much,” he says. “Just using this thermal imager to see if there’s a lot of heat escaping from certain parts of your house. You know, so I can tell if you might be growing marijuana.” After digesting this, you do what any reasonable person would do. You say, “If you’re not out of my sight by the time I count to three, I’m going to call the police.” Then comes the bad news: He is the police.
That scenario is imaginary now, but may not be for long. The government is finding all sorts of new ways to learn things about you that once were safely secret. There is a war going on between law enforcement and privacy, and privacy is losing.
The Supreme Court heard arguments the other day in the case of an Oregon man named Danny Lee Kyllo. After members of the Oregon National Guard used this gadget to detect unusual quantities of heat radiating from his garage, police got a warrant to search the house, found the heat was coming from equipment used to grow marijuana, and hauled him off to jail.
He argued in court that this type of surveillance was an illegal invasion of his privacy. Using advanced instruments to disclose information about what went on inside his home, his lawyer said, amounted to a search — requiring police to get a search warrant based on evidence that Kyllo had broken the law.
But “illegal invasion of privacy” is becoming a self-contradiction. Though the Constitution guarantees “the right of the people to be secure in their persons, houses, papers and effects,” two lower courts said the government could use its new technology to get an idea of what was going on inside the Kyllo abode. For that matter, police may use it to check out your home, and anyone else’s whenever the urge strikes.
The way the lower courts see it, measuring your home’s heat emissions is no different from watching what you do when you’re standing in front of your picture window. If you’re just going to brazenly disperse your excess heat in front of God and everybody, they insist, you can’t very well expect other people to turn away their thermal imaging devices. And if it happens that you’re just growing tomatoes, doing some welding, or baking a lot of cookies, surely you won’t mind letting those nice officers take your home apart to confirm your innocence.
The U.S. Supreme Court heard arguments in Kyllo’s case Tuesday, and it’s hard to be optimistic about the outcome. This court, after all, has said police have a free hand in rummaging through a closed garbage can that you put out for collection — something most of us would take as an act of war if one of our neighbors did it. The court said the government can send a helicopter over your backyard to see if anything suspicious is going on there — as if failing to put a dome over your property is an invitation for others to peer in to their heart’s content.
The justices once had a sensible approach to the use of technology to monitor people. Police used to assume they had a perfect right to attach a listening device to the outside of a phone booth to record conversations inside — since the device didn’t require an actual physical invasion of someone’s house or car. But in 1967, the Supreme Court ruled that someone conversing in a phone booth “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
Justice John Marshall Harlan’s reasoning in that case applies perfectly to this one. “A man’s home is, for most purposes, where he expects privacy,” he wrote, “but objects, activities or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.”
Heat emissions are not in “plain view” of those passing by, any more than phone-booth conversations are open to those outside the booth. Both can be exposed to others only through sophisticated instruments that the framers of the Constitution couldn’t have foreseen.
This case is a chance for the court to say that it won’t allow advances in technology to make traditional zones of privacy obsolete. Unfortunately, it’s also a chance for the court to say that in the modern world, you should live your life as if everything you do were being televised. At the rate we’re going, it may soon be.