Page 54 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 39

previously have been unknowable without physical intrusion, the surveil-
lance is a Fourth Amendment ‘search,’ and is presumptively unreasonable
without a warrant.” This represents yet another rationale and includes an
undefined term—“general public use”—as pointed out by Justice Stevens’s
dissent, which held, “the Court’s new rule is at once too broad and too nar-
row, and it is not justified by the Court’s explanation for its adoption. . . .
[How] much use is general public use is not even hinted at by the Court’s
opinion, which makes the somewhat doubtful assumption that the ther-
mal imager used in this case does not satisfy that criterion.” A great deal
depends on the nature of the device. If it is able merely to establish the
temperature in select rooms of the house and thus determine whether it
was abnormally high—which may indicate the presence of a marijuana
“grow room”—the device’s bandwidth is quite narrow. By contrast, ther-
mal imaging that produces detailed images of the interior of the house
based on temperatures—showing where individuals are sitting, whether
they are in bed, and so forth—would be considered to have a high band-
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width. The former should be allowed; the latter should not. There is no
inherent reason to cybernate this information for the purposes of divin-
ing additional information about that individual if nothing incriminating
is found.
Still another rationale was used by the Supreme Court in their ruling in
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Florida v. Riley, which examined the question of whether aerial surveil-
lance from a helicopter constituted a violation of Riley’s Fourth Amend-
ment rights. The Court held that, because Riley had no reason to believe
that his criminal activity was not visible from the air by a private citizen
operating an aerial vehicle from a height of 400 feet, Riley had no reason-
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able expectation of privacy in this situation. The height of 400 feet was
selected because this was the height at which the police helicopter in the
case flew over Riley’s property; the Court ruled that it was entirely possible
that “any member of the public” could have flown at that height over the
property. It is at least implied that had a lower-flying plane been used, pri-
vacy might have been granted.
Moreover, the special protection for private residences is of less value
than it used to be. In the cyber age, one can violate privacy just as much or
more in public spaces (e.g., by using parabolic microphones to eavesdrop
on conversations in a public park) as in the home (e.g., by using a ther-
mal device or narcotics sniffing dogs to measure temperatures or detect the
presence of controlled substances in a private residence). For this reason,
the CAPD should be applied as if privacy were a bubble that surrounds
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a person and that is carried wherever he or she goes. Although many
sensors are being added daily to the home—such as smart thermostats,
computers, security cameras, and smart televisions—the tapping of these