Habeas Data_Privacy vs. The Rise of Surveillance Tech

by Cyrus Farivar

  “Technological developments hold a serious potential to encroach on privacy, and in no context is the use of technology to conduct observations more sensitive than [in] an individual’s home,” attorneys for the Office of the Solicitor General responded. “But thermal imagers do not literally or figuratively penetrate the home and reveal private activities within. Unlike a hypothetical sophisticated X-ray device or microphone that could perceive activity through solid walls—observations that would amount to searches—a thermal imaging device passively detects only heat gradients on exterior surfaces and displays the read-outs as amorphous white or light gray blotches.”

  In other words, because the thermal imager was so crude and could not really peer in a detailed fashion into someone’s home, its use was more analogous to an officer watching a house with a pair of binoculars. Sure, the imager, like the binoculars, provided a small level of enhancement, but did not go too far.

  Plus, the heat lost through the walls of the house was essentially similar to smoke emanating from a chimney, or snow melting on a roof. Sure, combined with other information, this may allow officers to develop inferences about what else is going on inside, but taken by itself, simply scanning infrared radiation was permissible.

  The government also cited Knotts and Smith as evidence that technology that can enhance human abilities is permitted. In Knotts, an officer could have followed the chloroform barrel all the way to the Wisconsin cabin—the beeper simply made that process more efficient. Similarly, in Smith, an officer could have recorded all the incoming and outgoing calls, but the pen register automated that process.

  But Lerner had a powerful counterargument.

  “However, both Knotts and Smith were premised on the fact that the defendant had knowingly exposed certain conduct, which the beeper or pen register made easier to capture,” he wrote. “These cases permit the use of technology that makes police work more efficient, but which do no more than what the human senses could have done. Neither case addresses whether invisible radiation is knowingly exposed, nor authorizes surveillance of infrared radiation as a mere technological enhancement.”

  With numerous circuit courts split on the issue, the time was ripe for the Supreme Court to take up the case in the 2000–2001 term.

  More than 18 years after Knotts, the Supreme Court was at the tail end of the Rehnquist Court, but was firmly in the middle of eleven years of institutional stability (no justices would leave the court from 1994 until 2005). During the years that Chief Justice William Rehnquist presided over the court, seven of the nine justices were appointed by Republican presidents. Ideologically, they ranged from John Paul Stevens and Ruth Bader Ginsburg anchoring the liberal side, and Antonin Scalia and Clarence Thomas on the conservative side.

  After months of preparation with the Federal Public Defender’s Office in Portland, including numerous moot courts, the day finally arrived for Lerner to head to Washington, DC, and make his arguments before the Supreme Court.

  The day before oral arguments, February 19, 2001, Lerner took his wife and children to the National Zoo. He thought it would be a good way to clear his mind before the big day. The following day, February 20, Lerner and his family piled into a black stretch limousine. This was highly unusual for Lerner, who had never gone to court in style like this before. A relative and fellow attorney had arranged for the whole lot of them to be picked up from their hotel and driven to the Supreme Court.

  The defense attorney sat in the back against the window, looking out across downtown Washington, DC, as the rest of the family marveled at their high-class transportation. All of a sudden, the voice of Nina Totenberg, a longtime legal correspondent with National Public Radio, came over the car radio just as they passed the Capitol Building. Lerner grinned from ear to ear, pleased that his little case from Oregon had made national headlines.

  When they arrived at the Supreme Court, Lerner’s family wished him luck as he climbed up the court’s unassuming lower-level side entrance, not the grand marble entrance. As he began to get ready for the oral arguments, he came back to a point that he had realized during his practice sessions: don’t concede the core principle. A lot of the questioning from the justices is designed to throw the attorneys off-balance, to get them to concede a point, which can sometimes be fatal.

  “You have to figure out what it is that you cannot concede and to defend it, and that’s how I prepared,” he said. “The home is sacrosanct.”

  And that’s exactly what he did.

  When he stepped up to the lectern, Lerner got straight to the point.

  “Mr. Chief Justice, may it please the Court, this case is about thermal imaging of a home without a warrant, and whether that constitutes an impermissible search under the Fourth Amendment,” he said.

  Our home is the basic refuge for all citizens. It’s where we have our greatest expectations of privacy, where we are free to let down our guard, and where we should have our greatest feeling that we are free from government spying. Unreasonable and unwarranted searching of the home is the chief evil that the Fourth Amendment protects us against, and…the home itself has a specific mention in the Constitution, and as a bedrock principle, the home is a place where we have our most heightened expectations of privacy.

  A few minutes later, Lerner summarized his thinking: “I think anytime that the Government is seeking to capture information from a private place like the home, and they cannot do it with their own unaided human senses, then they may not use technology to do the same thing.”

  Justice Scalia challenged this assertion with the argument that the government should not have its investigatory powers hampered—it should be able to use technology, ranging from flashlights to binoculars, all the way up to thermal imagers.

  “I guess our position is that the burden really is improperly placed on the citizen to anticipate what type of technology the Government may come up with, and perhaps you’re correct that if it’s sufficiently sophisticated rather than something that’s very common and ordinary, then it shouldn’t be the burden of the citizen to anticipate what they can’t particularly know or may not know, and then take safeguarding measures,” Lerner countered.

  By the time Lerner concluded his arguments after about 28 minutes, he felt a little deflated. Justice Scalia, a conservative who was known to take pro-privacy views, should have been on his side. It can sometimes be hard to read a justice’s viewpoint from the questions they ask, Supreme Court or otherwise. Sometimes a question expresses their disagreement, but other times it can simply be a test of a lawyer’s mettle.

  Up next was Michael Dreeben, the deputy solicitor general and a veteran of the DOJ, having joined in 1988. (In June 2017, Dreeben was tapped to aid in Special Counsel Robert Mueller’s investigation into Russia’s efforts to sway the 2016 US presidential election. In November 2017, Dreeben also argued the government’s side in Carpenter.) Dreeben, with his receding hairline and salt-and-pepper beard, argued that the thermal imager was not as invasive as Lerner was making it out to be.

  “It does not penetrate the walls of the house, it does not reveal particular objects or activities inside of a house, and the record in this case and the findings that the district court made indicate that it is not capable of doing so through walls of a house,” Dreeben said. In short, because the thermal imager was simply reading heat that had already emanated from the house, then there was no privacy concern.

  However, Justice David Souter, a conservative justice who often voted with the liberal wing, wasn’t having it.

  “But, you know, all of that could have been said but for a change of senses about Katz,” he said. “What the bug in Katz was measuring was the effective sound on the exterior wall of the phone booth.”

  In essence, Souter was saying that like in Katz, where the privacy violation was found despite a lack of trespass into the phone booth, the court should find in Kyllo’s favor.

  The two went back and forth on this point for some time.

  “J
ustice Souter, I think that Katz is fundamentally different in the respect that what the bug picked up in Katz was sound waves, which is what we hear with, and it amplified them and exactly reproduced what Mr. Katz was saying inside the booth,” Dreeben said.

  “Yeah, but it was the wave after it got through the phone booth, just as what infrared is picking up is the wave after it gets through the roof or the window,” Souter countered.

  Finally, the argument reached a personal moment, when Justice Stephen Breyer said that 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.” Breyer further explained that he liked to use his in-home Finnish sauna for a few hours each day and that perhaps he didn’t want the police (or anyone else) to know about it.

  In the end, months later, it was Scalia who wrote the majority 5–4 opinion, with Souter, Thomas, Ginsburg, and Breyer joining. “The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy,” he wrote, noting at the very end of the opinion: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

  The Supreme Court rejected not only the government’s arguments in Kyllo, but the arguments put forth in the earlier OLC memo and the Smith Memorandum.

  “In our hearing in the district court challenging the use of thermal imaging, we learned that the [Smith Memorandum’s] entire legal analysis was written up by a retired DEA agent (named Charles Stowell) who became the marketing director for Agema,” Lerner said, referring to the company that manufactured the handheld infrared scanner.

  He used this slanted legal analysis to sell their thermal imagers to law enforcement agencies with a prepared legal argument to defend their use if they were ever challenged. Some of this bogus analysis made its way into the OLC analysis, but was rejected by the DOD…By the time the Kyllo case arose there was only one federal district court to have ruled on the issue, adopting the Stowell analysis, as did the judge in Kyllo’s case. These both proved to be wrongly decided.

  Several months later, Lerner found out that he had won the case only after a reporter called him.

  “I had to go online and pull the opinion so I could read it,” he said. “They’re very poor about communicating with you from the Supreme Court.”

  Still, Lerner was “hooting and hollering most of the day, and was calling everybody I knew.”

  One of his first calls was to his client, Danny Kyllo, who was living at his parents’ house.

  Kyllo’s father handed him the phone: “Your attorney is on the phone.”

  “Please be good news, I’ve had so much bad news,” Kyllo thought to himself.

  When Lerner told him what had happened a smile crept across his face—and why, yes, he would like to do an interview with Oregon Public Broadcasting.

  Eventually the Supreme Court sent Lerner a formal copy (known as a slip opinion). By coincidence, months later, when Justice Scalia came to Oregon to speak at a local law school, Lerner happily attended the lecture and asked Scalia to oblige him with an autograph of the opinion afterwards.

  “I remember that case,” Scalia said with a smile as he handed back the paperwork.

  * * *

  So, as of 2001, using a thermal imager to peer into a home without a warrant was an unconstitutional search. In some ways, this ruling marked a return to the Olmstead-era trespass rule of decades earlier. Justice Scalia, a textualist conservative, highlighted the fact in Kyllo that there was a “not only firm but also bright” line that the Fourth Amendment draws at the property boundary.

  So, using a thermal imager without a warrant at close range was unconstitutional. But what about something as old as a drug-sniffing dog—a “technology” commonly in use by law enforcement agencies nationwide. Would the use of such a dog be considered a Fourth Amendment search as well?

  More than five years after Kyllo was decided, Detective William Pedraja of the Miami-Dade Police Department unwittingly stepped into that question. In November 2006, Pedraja received a tip that a local man named Joelis Jardines was growing marijuana in his home.

  Roughly a month later, early one morning, local police and the DEA sent a joint team to Jardines’ home, where they found no vehicles present, and no activity in or around the home that they could observe. Pedraja’s colleague Detective Douglas Bartlet arrived with a drug-sniffing dog that was well-trained to detect numerous narcotics, including marijuana.

  With no trouble at all, Franky, a chocolate Labrador, alerted his handler to the presence of some sort of illegal drug—sticking his head high, sniffing the air, and bracketing, or walking back and forth as a way to find the source of the odor. In this case, it was the front door of Jardines’ house.

  Bartlet said later that he had walked right up to the front door and could smell marijuana. He later prepared an affidavit as a means to obtain a search warrant—when a formal search was conducted, marijuana was found.

  At trial, attorneys for Jardines asked the court to suppress the evidence seized based upon an illegal search—and the lowest state court did so. Prosecutors appealed the ruling up to an appeals court, known locally as a district court. That court found that the “officer had the right to go up to defendant’s front door,” even without a warrant.

  Jardines’ attorneys appealed this ruling up to the Florida Supreme Court.

  In its ruling in favor of Jardines, the Florida Supreme Court noted that while the Supreme Court of the United States had addressed some sniff test cases, none of them specifically addressed the situation of using a narcotics dog at a home. The others were sniffs at locations where privacy interest is notably less than in a home: at the airport or on the outside of one’s car at a traffic stop.

  The Florida Supreme Court ruled that a dog sniff at a house, with several officers who created a perimeter around the scene and more standing backup, was hardly subtle, unlike the circumstances detailed in the other drug cases. In fact, the entire affair—beginning with the arrival of the drug dog team, the sniffing, the affidavit writing, the signing off on a warrant, and the actual bona fide search—took hours.

  “The ‘sniff test’ apparently took place in plain view of the general public,” the Florida Supreme Court ruled. “There was no anonymity for the resident.”

  In essence, the Florida Supreme Court concluded, the warrantless drug sniff was an “unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.”

  Unsurprisingly, prosecutors appealed this case up to the Supreme Court of the United States, largely relying on the previous Supreme Court dog sniff precedents that had been found in the government’s favor.

  In a 5–4 decision authored by Justice Scalia on March 26, 2013, a majority of the court found in favor of Jardines. Scalia noted that typically if someone approaches a house the physical boundary of a property—known as curtilage—they simply knock or ring the bell and “wait briefly to be received.”

  “Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters,” Scalia wrote with a bit of snark.

  But a police dog is “something else.”

  “The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose,” he continued. “Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.”

  The court did not even need to reach the question of an “expectation of privacy under Katz. One virtue of the Fourth Amendmen
t’s property-rights baseline is that it keeps easy cases easy.”

  But, despite the fact that the decision in Kyllo addressed the newness of the technology, which was irrelevant in this case, the principle employed in Riley was essentially the same. Scalia and the court’s majority found that it made no difference that the police had been using such dogs “for centuries…when the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant.”

  * * *

  Nearly two decades after Kyllo, most non-lawyers might think that the issue of warrantless use of thermal imagers is decided. Scalia’s famous sentence seems pretty clear: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

  Combined with the fact that drug-sniffing dogs approaching someone’s front door without a warrant is also on its face “unreasonable,” it would seem that short-range scanning into someone’s home without a warrant should halt entirely.

  Of course, absent a department policy or state law specifically forbidding a particular practice or regulating a particular technology, law enforcement will always push the limits until they are told to stop. The job of the police, after all, is not to figure out where the lines are, but rather to be cognizant of those lines, and aggressively (à la Michael Hayden) go right up to them.

  Just as was the case in Kyllo and Jardines, a particular technique was legitimized until some enterprising lawyer bothered to try to stop it. Even then, challenging a practice is difficult, particularly when a technology is so new that hardly anyone even knows that it exists, or how it compares to what had been in use previously.