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This has been a big year in the world of high-tech surveillance. At the Super Bowl in January, a new technology was used to scan the faces of the fans as they entered the stadium in Tampa, Florida. Then Ybor City, a section of Tampa, installed a similar system for face recognition that operates 24 hours a day as a crime control measure. And this summer a case went to trial at a federal court in New Jersey testing whether the police can use a regular search warrant to enter an office and install an invisible software technique for keystroke monitoring.
There are some who, citing events like the ones mentioned above, say "Privacy is gone. Get over it." The specter of George Orwell's 1984 just doesn't send chills up their spines. But for those who have followed the history of privacy law in the United States, there is at least some reason for hope that even as new technologies arise, solutions will be found in the law to protect the rights of citizens.
During the 1920s, in the midst of Prohibition, the Supreme Court first considered whether the police should be subject to Fourth Amendment warrant requirements when using a new investigative technique -- wiretapping the telephone. The court ruled in Olmstead v. United States, a 5-4 opinion, that because there was no physical trespass or seizure of tangible evidence, no search had occurred. But Justice Louis Brandeis and Justice Oliver Wendell Holmes wrote in separate dissents that the law should limit this type of intrusion into private matters. A few years later Congress passed legislation to safeguard the privacy of telephone communications, and many years later the Supreme Court overturned the original decision in Olmstead and decided that when new technologies emerge, citizens are entitled to a "reasonable protection of privacy."
While there have been some setbacks over the last several decades, in recent years the justices, perhaps sensing a shift in public opinion, have looked more closely at privacy claims. In just the past year, to the surprise of many observers, the court ruled that certain government searches on highways, in hospitals and by means of new technology are unconstitutional.
In 1997 the court struck down a Georgia law that required candidates for public office to submit to drug testing. It was a remarkable outcome that broke a string of decisions in which the court had upheld drug-testing requirements for railway workers, customs officials and high school athletes. Justice Ruth Bader Ginsburg wrote for the court that there was no "symbolic exception" to the Fourth Amendment.
Two years earlier the court had sided with a petitioner who argued a First Amendment right to publish and distribute a pamphlet anonymously. The Supreme Court, noting that the Federalist Papers were published under pseudonyms, said that an integral part of free expression is the right to express your views and still keep your identity private. Then, in 1999, the court ruled that police violate a suspect's right to privacy by allowing news reporters along when they execute search or arrest warrants in a private home.
But no one expected what would happen this year. In one of the most remarkable Fourth Amendment cases in many years, the Supreme Court held that the use of a thermal imaging device without a warrant violated the Fourth Amendment. In Kyllo v. United States, federal agents employed the device (which detects radiation emitted from most objects and displays different colors that indicate the relative warmth of the emission) to scan Danny Kyllo's Oregon home for the presence of heat lamps used to grow marijuana plants. Based on the information gathered from the thermal imaging device, tips from informants and utility bills, a magistrate judge issued a warrant for agents to physically search Kyllo's home. The agents found an indoor growing operation with more than 100 plants. Kyllo was indicted as a result of the evidence obtained in the physical search of his home.
The justices had a lively exchange about whether the court could realistically limit the use of new surveillance techniques. Justice John Paul Stevens asked Kyllo's attorney, Kenneth Lerner, whether it would still be a search if the police had rented the house next door, leaned out a window with a long pole with a thermometer on it, and found out what part of Kyllo's house was hot and what wasn't. Lerner answered that the court could not limit police use of thermometers or watches or things "that we typically use in our daily lives." Justice David Souter then asked what if "thermal imaging becomes very common and every school kid has a $5 thermal imager?" Lerner replied, that if this point is reached, it might become like wiretapping, which is regulated under federal law even though it is not a particularly sophisticated surveillance technique.
In the end the Supreme Court sided with Kyllo and held that the warrantless electronic search of his home was unconstitutional. Justice Antonin Scalia said, "Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search -- at least where (as here) the technology in question is not in general public use."
Many of my colleagues believe that the focus of Kyllo will, for now, be limited to searches of the home. But my hope is that courts will look more closely at the constitutionality of invasive surveillance practices conducted in public places, such as the new cameras that perform real-time face recognition. Most people do not expect that automated devices will capture their identities when they walk down a street. And even if the practice becomes widespread, it could still be, like wiretapping, subject to federal regulation. Also, as a matter of constitutional tradition, the Supreme Court's expectation of privacy test was first established in a case concerning a phone call made from a public phone on a public street corner. If there is a constitutional right of privacy in a glass booth, surely that right can be found elsewhere.
The court has made clear that the Fourth Amendment has a future in the twenty-first century. With new technologies that reach increasingly into our personal lives and the very real risk of extended police surveillance in public spaces, it may be just in time.
Marc Rotenberg is the executive director of the Electronic Privacy Information Center (www.epic.org) and teaches privacy law at Georgetown University Law Center.
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