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A U.S. Supreme Court decision last week limiting law enforcements use of technology to snoop inside peoples homes could have implications for police surveillance of cyberspace, and will likely fuel momentum in the courts and on Capitol Hill to establish more online privacy protections.
In the case, Kyollo v. United States, the Supreme Court ruled that U.S. Department of Interior law enforcement agents violated Fourth Amendment protections when, without first getting a warrant, they used a thermal imaging device to discern “hot spots” in the suspects house that were consistent with the use of high-intensity lamps frequently used to grow marijuana.
The opinion argued that it “would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology . . . The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”
The decision “shows the courts interest in interpreting the Fourth Amendment that takes account of the shifting balance caused by new technology,” said Alan Davidson, staff counsel at the Center for Democracy and Technology, a cyberspace civil liberties watchdog organization. “I think its a first step towards a more comprehensive articulation of how the Fourth Amendment should operate in the Digital Age,” Davidson said, adding that the decision will likely be used in future courts to argue that personal papers, effects and persons — all of which are protected under the Fourth Amendment, along with homes — require similarly strict protections. This interpretation could affect cyberspace protections, where e-mail and other information lives on networks and is stored in servers and not in homes.
Davidson also said the decision suggests that “we will be hearing a lot more about it on [Capitol] Hill and from the public.”
The decision moved U.S. House of Representatives Majority Leader Dick Armey, R-Texas, to write a letter to Attorney General John Ashcroft last week, charging that, in light of the decision, it is reasonable to ask “whether the Internet surveillance system formerly known as Carnivore similarly undermines the minimum expectation that individuals have that their personal electronic communications will not be examined by law enforcement devices unless a specific court warrant has been issued.” Carnivore is a technology used by the Federal Bureau of Investigation to snoop on e-mail.
Evan Hendricks, editor at Privacy Times and a prominent privacy advocate, described it as “significant” that “someone of Armeys stature sees the connection, because for privacy to be adequately protected in the Carnivore context, its going to require [Capitol] Hill leadership.”