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Police V. Privacy

A replica 18th century wooden square rigger sails as 'The Zong,' past Tower Bridge on the Thames Thursday, March 29, 2007 in London. The voyage was part of recognition of the 200th anniversary of the abolition of the slave trade act. The Zong was at the center of a court case in 1783 after 133 slaves were thrown overboard in an insurance scam. The resulting public outrage led to the rise of the Abolitionist movement.
GETTY IMAGES/Peter Macdiarmid
Nine years ago, members of a narcotics task force were using a thermal imaging camera to detect whether Danny Kyllo's neighbors in Florence, Ore. were growing marijuana.

But when officers trained the scanner on Kyllo's home, it showed indications of excessive heat. The officers obtained a search warrant, found 100 marijuana plants growing under high-intensity lights and arrested Kyllo.

Kyllo claims the use of the high-tech camera was an illegal search.

"You know what I did was wrong, but what they did was wrong," Kyllo said, "and that's exactly what I'm trying to get across."

The case highlights a growing conflict between defense lawyers and prosecutors over privacy rights with each new high-tech gizmo police use to watch and catch suspected criminals.

From new "face-mapping" computer technology, used to check for terrorists at last month's Super Bowl, to alcohol-sniffing equipment at the end of a traffic cop's flashlight, technology is an increasingly large part of law enforcement.

Kyllo pleaded guilty to a federal charge, but reserved the right to appeal the search. On Tuesday, the Supreme Court will hear oral arguments on his appeal.

And though Kyllo faces only a month in jail if the high court rules against him, CBS News Correspondent Diana Olick reports that experts say the case is likely to bring out an important new definition of the legal limits on police searches of the most sacred of all private places — the home.

"I think the average American, myself included, is only beginning to realize the cost of technology, which as we know is moving forward with lightning speed, is a loss of personal privacy," said American Bar Association President Martha Barnett.

Acknowledging that the boundaries of privacy are being redrawn constantly, the 400,000-member ABA has come up with recommended standards for when and how police should use technology to watch the public and catch criminals.

"It was clear in recent years that the application of the Constitution to significant new forms of technology and the evolving ways that there can be surveillance of our activities was lagging far behind," said criminal defense lawyer Sheldon Krantz.

The non-binding standards, developed with help from law enforcement agencies and prosecutors, include recommendations that police think carefully about how effective the new tools will be and whether they are more intrusive than alternatives already available and effective.

The ABA also recommended that police know what they want the equipment to accomplish, apply it without discrimination and periodically re-evaluate it.

"Every six months the police department should sit down and see if the stuff is working," said University of Florida law Professor Christopher Slobogin, who also helped develop the surveillance recommendations. The standards wer published in 1999 and are now being distributed to lawyers, police, courts and others.

The ABA's governing body is expected to adopt similar ABA standards governing interception of electronic communications.

Police and prosecutors often argue that technology merely improves on the human senses without altering any fundamental expectation of individual privacy.

That is the argument the federal government will make in next week's drug case. Police could watch Kyllo's house without a warrant, the government argued in legal papers, so scanning the exterior of his Oregon house with a thermal imager wasn't much different.

The Agema Thermovision 210, which detected suspicious hot spots along Kyllo's roofline and garage, is a passive device, "unlike a hypothetical sophisticated X-ray device or microphone that could perceive activity through solid walls," the government wrote.
Those examples of more intrusive police methods, which the government said would constitute a search, aren't so hypothetical.

Technology already exists to check pupil dilation secretly for signs of drug use, or breath for evidence of alcohol, without police ever laying a hand on a potential suspect.

Hundreds of police departments are using the "P.A.S. III Sniffer," a tiny battery-powered alcohol detector, during traffic stops.

An officer shines a flashlight into a car, and the device sucks in the motorist's breath. A driver who tested clean would likely drive away none the wiser.

Civil liberties groups say the device violates the spirit, if not the letter, of the Fourth Amendment, but its manufacturer says there have been no lawsuits.

Police point out they would quickly arrest a drunk who reeks of alcohol, so the sniffer technology is really just a more sensitive version of the officer's nose.

Security cameras were trained on the faces of happy fans entering the turnstiles at the Jan. 28 Super Bowl in Tampa, Fla., and the digitized images instantly compared with those in computer banks of terrorists and other criminals.

No arrests were made, but the system did identify a known ticket scalper, who fled into the crowd. Tampa police said they are pleased with the system's performance.

The American Civil Liberties Union called it the "Snooper Bowl" and said it subjected unsuspecting fans to a "computerized police lineup."

Authorities know of no legal challenges so far, and security planners for the 2002 Winter Olympics in Salt Lake City are now evaluating whether the same technology should be used there.

"If they can invade the home what else can they do?" Kyllo asked. "We have no rights, it's not the land of the free."

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