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US Supremes: Hi-tech surveillance is out

Warrants required for TEMPEST-style snooping

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Internet Security Threat Report 2014

The US Supreme Court ruled that nosy cops and Feds must obtain a warrant to carry out remote surveillance of a suspect's house by means of radiation detection apparatus, according to a five/four decision issued Tuesday.

The key issue for the majority was the overriding sanctity of the private residence, which is both self-evident and backed up by centuries of common law. "In the home....all details are intimate details, because the entire area is held safe from prying government eyes," Justice Antonin Scalia wrote for the majority.

Thus, "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," for which a warrant must first be sought.

The minority choked on the sweeping nature of the majority's opinion. With this "all-encompassing rule for the future," the majority "unfortunately failed to heed the tried and true counsel of judicial restraint," Justice John Paul Stevens wrote.

"It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints."

But this nipping in the bud is precisely what Scalia and company had in mind. Failing to address the issue broadly "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home," Scalia wrote.

In other words, the majority wanted to block preemptively the initial uses of similar, and possibly worse, police technologies during that interim period between when the cops first get their eager little hands on the gizmos, and when the use of such Fascist devices ends up challenged before the bench.

The case was Kyllo v. United States, which began in 1992 when federal agents trained a toy called Agema ThermoVision on a house in Florence, Oregon to find thermal evidence indicating marijuana cultivation.

Strange Bedfellows

The vote-split in this case was interesting. The minority consisted of left-winger Justice Stevens, as well as right-winger William Rehnquist and moderate righties Sandra Day O'Connor and Anthony Kennedy.

The majority consisted of right-wing Justices Scalia and Clarence Thomas, along with lefties Ruth Bader Ginsburg and Stephen Breyer and centrist David Souter.

Interestingly, Justice Scalia dissented in Bond v. United States, which ruled 7/2 that cops have no right to walk down the aisle of a bus and palpate passengers' luggage to look for drugs and guns. Justice Rehnquist, in that case, was on the side of the angels; and even Justice Thomas took the highly unusual step of voting against Justice Scalia.

Justice Rhenquist's inconsistency in Kyllo is most perplexing. He said in Bond that the government has no business feeling and making inferences about the contents of luggage in a public place, but in Kyllo he says that they have every right to make inferences about what citizens are up to in their residences with electronic gizmos.

Scalia is more logical, saying in Bond that when one ventures into the public realm one can't expect to carry with him all of the privacy protections guaranteed in the home, but in Kyllo that the private residence is a nearly inviolable sanctuary in which the merest surveillance almost always constitutes a search.

Frankly, we're pleased with both decisions. ®

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