A few years ago now, I wrote a thesis about a type of surveillance and included a quote from a 1928 dissent in the Supreme Court of the United
Justice case Olmstead v. U.S. 277 U.S. 438 (1928):
Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in Court, and by which it will be enabled to expose a jury to the most intimate occurrences of the home.
…
…as time works, subtler and more far-reaching means of invading privacy will become available to the government. The progress of science in furnishing the government with the means of espionage is not likely to stop with wiretapping. Advances in the psychic and related sciences may bring means of exploring beliefs, thoughts and emotions.
The Supreme Court of Canada recently reviewed a case, R. v. Tessling, similar at least in the use of such new intrusive technologies:
The RCMP used an airplane equipped with a Forward Looking Infra-Red (“FLIR”) camera to overfly properties owned by the accused. FLIR technology records images of thermal energy or heat radiating from a building. It cannot, at this stage of its development, determine the nature of the source of heat within the building or “see” through the external surfaces of a building. The RCMP were able to obtain a search warrant for the accused’s home based on the results of the FLIR image coupled with information supplied by two informants. In the house, the RCMP found a large quantity of marijuana and several guns. The accused was charged with a variety of drug and weapons offences.
The headnote to the Tessling ruling in summarizing the Court’s ruling states that the accused had a privacy interest in the activities taking place in his home and it may be presumed that he had a subjective expectation of privacy in such activities to the extent they were the subject matter of the search. However, everything shown in the heat-generated photograph exists on the external surfaces of the building and, in that sense, it recorded only information exposed to the public. Although the information about the distribution of the heat was not visible to the naked eye, the heat profile did not expose any intimate details of the accused’s lifestyle or part of his core biographical data. It only showed that some of the activities in the house generate heat. Thus, the Court held, when one considers the “totality of the circumstances”, the use of the technology did not intrude on the reasonable sphere of privacy of the accused.
It is interesting to note that the ruling in 2004 was about a fact situation in 1999 and 1999 technology. Despite this delay between the facts before it and its own ruling, the Supreme Court of Canada stated in Tessling:
In my view, with respect, the reasonableness line has to be determined by looking at the information generated by existing FLIR technology, and then evaluating its impact on a reasonable privacy interest. If, as expected, the capability of FLIR and other technologies will improve and the nature and quality of the information hereafter changes, it will be a different case, and the courts will have to deal with its privacy implications at that time in light of the facts as they then exist.
So what can Forward Looking Infra-Red see now? Ratheon sell it to the US Air Force promoting these features. SgmaTel made this press release last month. The US Army Research Laboratory announced this earlier this year. Not exactly a simple infra-red camera hanging from a police helicopter now. Smart image processing is occuring.
As was stated in the dissent in Olmstead,
…the makers of the US Constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope, and include the right to life and an inviolate personality — the right to be left alone — the most comprehensive of rights and the right most valued by civilized men… It does not matter if the target of government intrusion is a confirmed criminal. If the government becomes a lawbreaker, it breeds contempt for law.
This was written by Justice Louis Brandeis and conccurred with by Justice Oliver Wendle Holmes, two fairly strong swimmers. Do you believe that this is a relevant statement regarding the limits of surveillance given the advance of technology? Does a court that reviews the facts of a case five years after the fact inspire you with great confidence that the law has a good handle on advancing surveillance technologies and your privacy?