On June 11, 2001, the Supreme Court took another step in defining the Constitutional protections offered by the Fourth Amendment’s prohibition against “unreasonable searches” in an age of rapidly improving and intrusive surveillance technology. The case involved one Danny Lee Kyllo. It seems that Kyllo was an avid indoor horticulturalist. Unfortunately, Kyllo devoted his botanical skills to raising marijuana plants rather than roses.
The indoor cultivation of marijuana requires high intensity lamps. On the basis of tips that Kyllo was involved in marijuana transactions and had larger than average electric bills, but without bothering to secure a warrant from a judge, the authorities arranged for Kyllo’s house to be scanned by an Agema Thermovision 210 thermal imager. The imager revealed the increased heat emanating from the house indirectly indicating the presence of the marijuana lamps. Using this additional information, the police persuaded a judge to issue a search warrant. The results of that search provided evidence used to convict Kyllo.
The issue before the US Supreme Court was whether the use of the imager constituted a search. If it was a search of a home without a warrant, then the evidence from the imager could not be presented to a judge to secure a warrant or used in a trial against Kyllo. If the use of the imager is considered the gathering of information that is “in plain view,” then its use is “presumptively reasonable.”
Writing for the majority in a close 5-4 decision, Justice Antonin Scalia found that the use of the thermal imager to scan a private home is indeed a search and requires a search warrant. Scalia’s reasoning relies on Silverman v. United States (1961) that argued that the essential core of the Fourth Amendment “stands the right of a man to retreat into his own home [and] there be free from unreasonable governmental intrusion.” Kyllo was at home and Scalia argues that in the home there is reasonable assumption of privacy that was violated by the scanner.
Justice Paul Stevens, dissenting, tried to draw a distinction between “through the wall surveillance” and “off the wall surveillance” but the only thing off the wall was Stevens’s reasoning. Stevens argued that the thermal imager was detecting emanations from the house not really looking into the home. But his distinction was one without a difference. If a device amplifies the senses and allows the authorities to determine what is happening in a house in a way that would normally require a more direct conventional search, the use of the device really is a search. Moreover, Scalia responded that even if this particular thermal imager provided crude images, “the rule we adopt must take account of more sophisticated systems that are already in use or development.”
One reason that a person has a reasonable expectation of privacy, according to Scalia, is because thermal imagers are not “in general use.” This is the one important flaw in Scalia’s argument. Technology will inevitably improve. If consumer video cameras in the future have infrared imaging capabilities, then any passerby could detect hot spots in a house. This being the case, the reasonability of the expectation of privacy erodes and the zone of personal privacy shrinks.
What is also interesting about this case is the way the court divided. In the past, Justice Stevens has been more likely to side against law enforcement authorities. Yet in this case he found that the use of a thermal imager did not constitute a search under the rules of the Fourth Amendment. On the other hand, Scalia and Thomas, who have been less inclined to shackle law enforcement authorities, are clearly fearful of a world open to high-tech government intrusion.
Canadian Health Care and Growing Dependence on the State
Sunday, June 17th, 2001Sydney, Australia. One of the more pleasant duties of my occupation is the occasional opportunity to attend international conferences and exchange scientific ideas with new colleagues and colleagues that have grown into friends. Many times the most productive exchanges occur over lunch and dinner. The sated feeling of a full stomach induces an aura of comfort conducive to open and frank exchanges. Scientists become willing to quietly speculate about ideas and notions they might not feel comfortable committing to in a formal forum.These occasions also provide opportunities to come to understand different societies and cultures. Certainly, scientists generally come from similar classes in their respective societies. Nonetheless, they generally adopt the ideas and prejudices that underpin their societies. Moreover, since scientists and engineers typically occupy privileged positions, they are consequently more likely to defend current social structures.
In is in this context, that I enjoyed a pleasant dinner with a group of Americans and Canadians at a Spanish restaurant in Sydney, Australia as the conversation drifted to differences between American and Canadian medical care. OK, OK, I might have pushed the conversation there.
My Canadian friends were at one time proud of government-provided universal medical care, while at the same time they admitted certain difficulties. There tends to be a shortage of doctors that often increases the wait for medical care. Care may be free, but it is rationed by time. However, Canadians have learned to be patient patients and generally accept inconvenience as one price for their health care system.
I asked what happens if someone has to wait for a heart operation? Well, I was told, if a patient needs one they get one, but the doctor, not the patient, is the one who decides what is needed. If a patient is not willing to accept the same risk as the doctor is, a patient cannot even pay a private doctor for separate treatment. The Canadian government does not permit private medical facilities that would require an overnight stay. The idea is that if a doctor offers his services privately, then he is taking them away from the pool of services available to the state. Patients must travel to the United States if they desire more medical care. The United States provides Canada a safety valve for alternative care.
If a Canadian doctor errs and you die while waiting for a heart operation because the doctor assigned you too low a priority, he or she is less liable to a lawsuit than a doctor would be in the United States. Of course, the health care system, the Canadian HMO if you will, is not liable at all. If the state health care system misallocates resources in a way that denies a patient services when needed, it is not accountable to the patient for this miscalculation. This is an interesting point to consider as we debate in the US the level of HMO legal liability. As long as there is a private component to the health care system, legal accountability is at least possible.
My Canadian friends explained that doctors are allocated to different provinces by the government. They seem to accept this heavy handedness without question, so I asked whether they considered it presumptuous of the government to tell doctors where to practice. Their response was that the government contributed to the education of doctors and therefore had a right to decide where they could practice. There are no private universities in Canada so the government is the source of doctors.
My Canadian friends had no response to the observation that by the same argument, the fact that the state provides a free public education would entitle the state to tell everyone, not just doctors, where they can live and what jobs they can occupy.
What is scary is not that my Canadian friends are somehow indifferent to the ever-expanding power and intrusiveness of the state, but rather that these people are not unlike me. They have much the same temperament and interests. Under only slightly different conditions, our places could be exchanged. It is chilling to realize how fragile appreciation of freedom and independence is; how easy it is to willing exchange personal freedom for security and to accept the role of sheep with the government as benevolent shepherd.
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