In the opinion of Kyllo v. United States, the issue of technology and surveillance with respect to the constitutionality of an arrest made based upon evidence gathered by a thermal surveillance device used to determine an unnatural radiation coming from a house that was believed to contain homegrown marijuana. (As an aside, I happen to believe that since this case involves something as controversial as marijuana, those justices writing this opinion cannot possibly divorce themselves from their general opinions on this topical issue)

Either way, Justice Scalia makes an eerie concession in his opinion: “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” (p. 6). Indeed, a device such as the one used to determine the abnormal heat being emitted from Kyllo’s home is in a sense an invasion of the home, in as much as it is an indicator of a detail that would go unknown to anyone not within the walls of the house. The legality of searches involving bugs, phone taps, and the monitoring of internet activity has been questioned previously, yet upheld in the cases of those believed to be a threat to society. However, since the thermal device is not available to the public, it cannot produce viable evidence that can warrant a search or an arrest.

Let’s back up a minute. The Court’s decision in this case is based upon an interpretation of the Fourth Amendment based upon the illegality of an invasion into the private sphere of the home. However, invasions of the home through now conventional technologies such as the microphone, the camera, and the computer are perfectly legal. Therefore, the Court’s decision is actually based on the availability of the technology used to obtain the evidence to finger Kyllo. In other words, since the thermal detection device is unavailable to the public, it is as if the authorities “cheated” in their surveillance of Kyllo. We can only assume that if this device had sufficient practical use and was priced accordingly, its use as a tool of surveillance would be legal.

My eyes are falling out of my head. I’ll post the rest of my response tomorrow, I promise.

posted by Anonymous at 4:30 AM

One of the more ambiguous terms in the cases we read was that of the “subjective expectation of privacy” in Kyllo v. US. From the discussion in that case, it seems that such an expectation is exhibited when an effort to conceal or to mask is enacted. Thus the 9th circuit court had upheld the heat imaging “on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from the home.” Although this decision was overturned by the Supreme Court, this definition of an expectation of privacy is a disturbing one that seems to require all private citizens with an expectation of privacy to become practiced in the machinations of the ‘criminal mind’ or the paranoiac. We are to assume that unless we take measures to counteract it, we are always potentially being watched – the mark of panopticism in effect. This notion resonates well with Keenan’s discussion of the window as a permeable membrane of the home – a channel of violent penetration into the private sphere. Thus, does the eye-shaped Lautner house whose “south elevation is virtually nothing but a window,” completely surrender all privileged notions of the intimacy of the private residence and its freedom from surveillance before the law simply by opening itself up to transparency, as Keenan suggests, exposing “its occupant to the intrusion of an uncontrollable exteriority”? What strikes me is how much more literal Keenan’s argument here becomes when it passes over into legal terms. Also what concerns me about this case is in line with what Chang points out when she says, “The recent decision in Kyllo v. United States serves as a pointed reminder that once a Fourth Amendment protection has been eroded, the resulting loss to our privacy is likely to be permanent.” Therefore if Virillio’s prophecy of the increasing “industrialization of vision” where visual perception is delegated to a machine that has the the scanning ability to exponentially increase the capacities of seeing, and this innovation becomes sufficiently dispersed and commonplace, then soon such heat scanning will no longer be deemed an unusual intrusion in view of the court’s emphasis on the non-widespread use of the device. Virillio already points out how the surveillance camera’s “uninterrupted stream of images” has become accepted as a fixture of our reality and the very fact of the surveillance camera’s omnipresence is what makes it permissable apparently. On another note, to invoke Virillio again, it is uncanny to what extent his analysis of the “terror effect” of the French Revolution corresponds with the terms of the Patriot act. He says in “Public Image,” “the terror-effect’s atavistic twin nature – its obsession with the un-said going hand in glove with a totalitarian desire for clarification...” The Patriot Act’s dispensing of the constraints of the First and Fourth Amendment can be said to correspond to what Virillio calls in terms of 1789 “the invention of a public gaze that apsired to a spontaneous science, to a sort of knowledge in its raw state...” Thus the unrefined searches of Carnivore that hijacks both content along with sender/receiver information and roving wiretaps represent the drive towards obtaining knowledge in its raw state. Even though as we’ve discussed several times in class how mass surveillance of emails might be viewed as useless because of the sheer enormity of the information and the practical impossibility of ever reading it all, it represents this “totalitarian desire for clarification,” the enlightening that is desired in response to the terror-effect.
posted by Anonymous at 3:19 AM

I'm not really sure where to go with this post, other than, at the moment, I want to go to law school and actually write decent jurisprudence. The majority opinion on White vs. Samsung was really troubling to me. I personally take issue with the way intellectual property is dealt with in this country; amazingly, law and jurisprudence have both increasingly sided in favor of copyright holders. Beyond Vanna White's right not to have robot impersonators, citizens and resident aliens of this country are losing Constitutional rights -- the 1st and 4th amendments seem to become more and more relevant and yet more and more ignored all the time. I'm part libertarian, and this stuff really gets my blood boiling. I share Ellen's sentiment about the USA PATRIOT Act, although I don't necessarily share her confidence that the Judiciary or Congress will realize the mistake that has been made.

Okay. End of rant.

One thing that I'd really like to bring out is the importance of temporality to questions of the 4th ammendment in Kyllo v. United States; my issue here is not with the actual precedent set in this case, but rather to the preceding jurisprudence that establishes surveillance on the outside of a home round the clock not as search. It seems to me that the terms in which both Scalia and Stevens set their arguments is interesting spatial, and not visible. There is a private space which is the home which is/is not penetrated by the use of heat imaging technology. What is ignored are questions of visuality and temporality.

It seems to me that Scalia locates the "unreasonable search" in the actual recording of the heat images, while Stevens locates it in the inference process and conclusion-making of the police officers who then applied for the warrant. There are obvious differences between video or photographic surveillance and the heat imaging that led to the arrest of Kyllo. The similarities are what strike me. The heat imaging is not legal without a warrant because it "sees through walls" -- it sees in a way a human is not physically capable of. However, video surveillance doesn't transcend physical barriers nearly as much as it transcends time and space. A video camera can be left on indefinitely unmanned. They are both "sense-enhancing technologies." They both see in ways that human eyes never could. And in many ways, unseen video and photographic surveillance makes me more uncomfortable than heat surveillance, even in the abstract theoretical.

I guess it all comes down to the fact that if there were a police officer standing out on the street in front of my house peering into my windows, I'd get pretty pissed off. Not only do I have an expectation of privacy, but I also think it's pretty reasonable. And yet video surveillance of private property has continuously been upheld as not breeching the 4th ammendment. What is it in the quality of sight that heat imaging has that video surveillance doesn't that "preserves the sanctity of the home"?
posted by Anonymous at 3:05 AM

The issue behind the Kyllo v. United States judgement seems to be whether earlier ideas about privacy and personal secrecy are still tenable in a new technological era. Both the majority opinion and the dissent make reference to the Fourth Amendment and try to reconcile their opinions relative to the framer’s original intention and the kinds of privacy it secured. The majority opinion seems particularly concerned with technological development as it will impact citizens’ rights. They mention the historical changes of technology and its impact on privacy (p 3) and are far-sighted enough to be concerned with the precedent that this ruling establishes, a fact with which the more practically concerned dissent finds fault. But, if future technological development resembles at all past development, it is clear that the prediction of “off the wall” listening and viewing devices that enable perfect transparency are not too terribly far off. The real question, to me, is whether the general availability of these kinds of spy equipment will really impact the privacy of the individual American. Will there ever be a time when average citizens purchase thermal sensors to find out where their neighbors are in their houses?

It seems, particularly to the dissenting opinion, that privacy is only what the citizen is willing to fight to ensure. If you aren’t willing to stop heat or sound or noise or most anything else from escaping your house, understand that anyone is able to observe whatever comes out. The Katz decision limits surveillance from being “on the wall,” but the dissenting opinion seems to believe that more effective listening devices which no longer need to be planted actually on a telephone booth could be perfectly acceptable. Reminiscent of Keenan’s definition of the public as whatever is not reducible to the private, the public sphere becomes whatever the citizen isn’t willing to protect from others. Technology shifts an even greater responsibility onto the citizen because there are even more ways in which he must protect himself – monitoring the volume level of his conversations, the heat produced in rooms in his house, etc.

In my opinion, I think that technology has already changed the way that the private sphere is constituted. Habermas blamed the conflation of public and private on consumer capitalism and making the private world a public interest, but I’m not sure that this is really the whole story. In my opinion, even more that the capitalistic system, I think technology brings the public and the private together. Habermas talks about how newspapers began simply by printing personal letters, but something had to be created in order to print the letters cheaply and effectively. Similarly, the ruling in Kyllo v. US repeatedly makes reference to the general use of the invasive technology. Satellite technology lays a blanket of visibility over the Earth, placing everything under surveillance. Greater listening devices will soon no longer need to be on the wall or even in the room. A spy with a directional mike can hear just as well from the next room, across the street, down the block or off of a satellite.

But the real question is why does any of this watching matter. Who cares who is watching you? It only becomes important if the watching is equated with power which, when the government is doing the watching, becomes an issue, but otherwise, it’s just some guy doing the watching. He doesn’t have any power. Despite the theoretical celebration of the empowerment of the gaze itself, there’s nothing in the act of watching makes me nervous. Maybe I’m just not paranoid enough, but I don’t care who sees what websites I go to or how hot a certain room in my house is or which side of the street I walk down. What are they going to catch me doing, tripping on the curb? Picking my nose? To me, it’s a question of how the information will be used and, in the vast majority of cases, it seems like it won’t be used at all.

posted by Anonymous at 2:50 AM

Intent, Negligence, and Standards

If you watch "Law and Order" these days, there are often two parts to the prosecution’s job. For example, the murderer is clearly guilty for killing twenty-five people in Central Park, but the gun manufacturer is also tried for producing a gun that is easily altered from a semi-automatic weapon into an automatic one. Or a convicted rapist released on probation is clearly guilty of cyber-stalking and then stabbing his therapist to death and the Internet company that sold him information about her is under indictment for negligence in their background checks. There is a show called "Criminal Intent" that tracks the criminal mind, motive, and desired end. As seen in popular media legal shows, intent and negligence are often points of contention in legal proceedings.
These idealistic series go after murderers, rapists, and additionally greedy corporations. However, rarely do the enforcers get checked or questioned. If a warrant’s validity does not stand up in court, the victims’ families are shown enraged and dejected as the killer escapes justice due to a bureaucratic error. After all, "entertaining," "good" TV is built on melodrama that reassures the status quo. In the wake of September 11th, however, surveillance as well as search and seizure enjoys a new status and freedom in the name of anti-terrorism. I doubt somehow that we will be seeing any representations of the misuse of Patriot Act any time soon on "Law and Order."
The issue of abridging the First and Fourth Amendments becomes more important to me after the Patriot Act so quickly and sweepingly changed my relationship with our government. Overwhelmingly passed in the House and Senate, the USA Patriot Act became a march of ideology to tap your foot to as opposed to the serious infringement of civil liberties and the Bill of Rights evident in Section 802, 213, and others.
So, to look at the question of intent…does Congress wish to stomp on the Constitution? My guess is no. Obviously, the heinous attack on the World Trade Center called for immediate action. However, in certain parts of the Patriot Act, Congress willfully ignored the intent of the founding fathers to produce fundamental protections for citizens in the Bill of Rights.
Now ominous sounding, Sandra Day O’Connor’s portentous words ring true, "We’re likely to experience more restrictions on personal freedom than has ever been the case in this country." During the initial aftermath of the tragedy, my knee-jerk reaction was to accept these new restrictions for my own safety. I see though that the extra hour I spend at the airport will have no relation to the immigrant detained indefinitely in an INS facility. My concern is that judicial checks will come slowly and only after many experience undue confinement politically, religiously, and personally. O’Connor’s statement drives home that fear.
How do we reconcile the need for domestic security and the need for civil liberties? Do we dare to write the problem off as impossible? Certainly not. Furthermore, as new technologies become available as in Kyllo, does our responsibility to the safety of the nation override the aspiration for personal privacy? The re-examination of the First and Fourth Amendments is inevitable.
The five dominant theories surrounding the first amendment…can they help?
1. Absolutist Theory: "The First Amendment declares that "no law" shall abridge the freedom of speech or of the press. "No law" means no law." (ML, 44)
I somehow doubt this one will be so helpful.
2. Ad hoc balancing theory: "Freedom of speech and press are two of a number of important human rights we value in this nation. These rights often conflict. When conflict occurs, it is the responsibility of the court to balance these freedom of expression with other values…This theory is called ad hoc balancing because the scales are erected anew in every case." (ML, 44)
Sounds like it could be arbitrary, (region, time, community standards) but I guess that’s what appeals could be for?
3. Preferred position balancing theory: "Freedom of expression must be given a preferred status when balanced against other rights." (ML, 45)
I like it a lot.
4. Meiklejohnian theory: "Meiklejohn looked at the First Amendment in a pragmatic manner and argued that freedom of expression is worth little as an abstract concept; that its primary value is a means to an end. That end is successful self-government…Expression that does not relate to the self-governing process is not protected absolutely by the First Amendment." (ML, 45) This is problematic…it reminds me of two related quotes: "…one man’s vulgarity is another’s lyric." (Justice Harlan in the opinion in Cohen v. California) and relating to two weeks ago… "One person’s pornography is another’s erotica."
5. Access theory: "…First Amendment includes the right of the people to gain access to the mass media to publish or present their own views and ideas." (ML, 46) Alright, well, this is a moot point in a way because in Miami Herald v. Tornillo the Supreme Court ruled that due to size limitations etc. a newspaper could not really be forced to run the views of every citizen. Still that is also where the Fairness Doctrine comes into effect in a limited way that obliged broadcasters to air certain types of programming.
The Fourth Amendment… "The right of the people to be secure…" taken out of context, it creates another contradiction. I am puzzled by the questions our nation faces; I do not pretend to know absolutely what is right or wrong. Perhaps it is naivete or just hopefulness, but I am confident that the system of check and balances along with civil rights advocacy will prevail. I am not so confident, however, that it will happen quickly.


ML: Pember, Don L. Mass Media Law. (USA: McGraw-Hill, 2000)



posted by Anonymous at 11:52 PM

I, as i'm sure the majority of the class would agree with, really enjoyed reading about the interpretations of a 200 year old set of rules and privileges in an age that is so much more complicated technologically that ultimately the paradigm set to govern the rules becomes obfuscated in rhetoric. What truly frightens me about the Patriot Act is the general tone it conveys, the security of the whole is much more important than the privacy of an individual. I feel as though this is a slap in the face of the ideals and desires that this country was founded on. Privacy against a totalitarianistic government was so important to the founders of this country that it was etched in the annals of history as an amendment to our constitution. The spirit of the decision in the Kyllo v. US case was intriguing because while ultimately, the dissenting opinion made complete sense, it was the dissenting opinion because the tone of the decision seemed more along the lines of the original intentions of the term privacy, as used in the constitution. The dissenting argument that makes the most sense to me would speak of the use of this technology on a less mundane court case. Ultimately, it seems like a ridiculous measure to use such sophisticated surveillance tools to stop someone from growing a plant in their house. But on the other hand, I’m sure it would have been hard to throw out the warrant if it had been obtained to search someone who was accused of killing people and burning them in his kitchen (ok… so a bad example, but I mean… just think about the aspect of this technology that could be used for a more productive public good…). But I suppose its this gray area, this slippage, that makes any hard and fast law that governs surveillance a difficult one to propose. Clearly as technology progresses, it will be used and abused, but it will also be thwarted (think about the fact that the same company that created radar guns for police depts. made radar detectors for consumers). The Patriot Act basically abolishes this slippage by assuming that every act that could be detected by any surveillance device is most likely criminal, and thus dangerous. Michael’s point about the government’s increasing stake at cornering the definition of public and private totally hits the nail on the head, as its clear by reading the complaints the EFF has with the act that the government is tired of having its hands held. The line that divides private and public information in a representational / non physical space is only easily seen for what it is, essentially non-existent, by exploring the terms of the recently rattified Patriot Act.


-Manu
posted by Anonymous at 11:32 PM

Michael Bernstein
02.10.02

The case of Kyllo v. United States illustrates the juridical system’s increased investment in re-articulating and cementing our public and private spaces. It is not that we have encountered a slippage in the once easily dichotomized relationship between the public and private; rather, with the increased development and proliferation of new surveillance technologies, emerges a moment marked by the hyper-visible, a radical visualization and uncovering of spaces once absent within the public/private divide. As such, it should not surprise us that much of what this case questions is whether the roof, the garage door, the walls of the house constitute the actual interior of the home, the domain of the private, or whether it ought to be relegated to the public, defined simply as those surfaces projected out towards the public, insulating and concealing the interior space of the bourgeois home: “[T]he use of the thermal imaging device here was not an intrusion into Kyllo’s home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home.“…[T]he equipment in this case did not penetrate the walls of the petitioner’s home, and while it did pick up “details of the home” that were exposed to the public, it did not obtain “any information regarding the interior of the home.”

What the above quotation seems to suggest, then, is a major differentiation, on the one hand, between the sacred space of the home (those “intimate details” contained within the house’s interior) and, on the other hand, those leakages of space from the private to the public (those “amorphous hot spots” of Kyllo’s home supposedly detectable by the passer-by). We should not be surprised in the juridical system’s need to codify these spaces, to leave nothing unidentified by vision. However, with the Internet’s move from physical spaces to simply representational spaces, what is at stake here? Of course, new juridical discourses have emerged to re-contain these emerging spaces and technologies, but what the Internet seems to eclipse, or elide, is our previous fetishized attachment to private, that interior of the bourgeois home protected for the sake of procreation and, of course, the continued division of labor. Will there remain sacred space in cyberspace? Or have we moved radically beyond sentimental attachments? When safely tucked inside the interior of our home, do our explorations on the Internet move us into the public? Or do we remain safe from governmental intrusions? Does the physical location of the computer (i.e. public terminal vs. home computer, etc…) make a difference in this case? In the case of the sniffer, must we make a differentiation between, on the one hand, the basic development of a program (a sniffer) capable of tracking peoples’ movements through cyberspace and, on the other hand, the actual logging of these movements?

That’s all for now.

posted by Anonymous at 11:22 PM

Michael Bernstein 02.10.02

The case of Kyllo v. United States illustrates the juridical system’s increased investment in re-articulating and cementing our public and private spaces. It is not that we have encountered a slippage in the once easily dichotomized relationship between the public and private; rather, with the increased development and proliferation of new surveillance technologies, emerges a moment marked by the hyper-visible, a radical visualization and uncovering of spaces once absent within the public/private divide. As such, it should not surprise us that much of what this case questions is whether the roof, the garage door, the walls of the house constitute the actual interior of the home, the domain of the private, or whether it ought to be relegated to the public, defined simply as those surfaces projected out towards the public, insulating and concealing the interior space of the bourgeois home: “[T]he use of the thermal imaging device here was not an intrusion into Kyllo’s home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home. “…[T]he equipment in this case did not penetrate the walls of the petitioner’s home, and while it did pick up “details of the home” that were exposed to the public, it did not obtain “any information regarding the interior of the home.” (my emphasis).

What the above quotation seems to suggest, then, is a major differentiation, on the one hand, between the sacred space of the home (those “intimate details” contained within the house’s interior) and, on the other hand, those leakages of space from the private to the public (those “amorphous hot spots” of Kyllo’s home supposedly detectable by the passer-by). We should not be surprised in the juridical system’s need to codify these spaces, to leave nothing unidentified by vision. However, with the Internet’s move from physical spaces to simply representational spaces, what is at stake here? Of course, new juridical discourses have emerged to re-contain these emerging spaces and technologies, but what the Internet seems to eclipse, or elide, is our previous fetishized attachment to private, that interior of the bourgeois home protected for the sake of procreation and, of course, the continued division of labor. Will there remain sacred space in cyberspace? Or have we moved radically beyond sentimental attachments? When safely tucked inside the interior of our home, do our explorations on the Internet move us into the public? Or do we remain safe from governmental intrusions? Does the physical location of the computer (i.e. public terminal vs. home computer, etc…) make a difference in this case? In the case of the sniffer, must we make a differentiation between, on the one hand, the basic development of a program (a sniffer) capable of tracking peoples’ movements through cyberspace and, on the other hand, the actual logging of these movements?

That’s all for now.

posted by Anonymous at 11:20 PM

The case of Kyllo v. United States illustrates the juridical system’s increased investment in re-articulating and cementing our public and private spaces. It is not that we have encountered a slippage in the once easily dichotomized relationship between the public and private; rather, with the increased development and proliferation of new surveillance technologies, emerges a moment marked by the hyper-visible, a radical visualization and uncovering of spaces once absent within the public/private divide. As such, it should not surprise us that much of what this case questions is whether the roof, the garage door, the walls of the house constitute the actual interior of the home, the domain of the private, or whether it ought to be relegated to the public, defined simply as those surfaces projected out towards the public, insulating and concealing the interior space of the bourgeois home: “[T]he use of the thermal imaging device here was not an intrusion into Kyllo’s home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home. “…[T]he equipment in this case did not penetrate the walls of the petitioner’s home, and while it did pick up “details of the home” that were exposed to the public, it did not obtain “any information regarding the interior of the home.” (my emphasis).

What the above quotation seems to suggest, then, is a major differentiation, on the one hand, between the sacred space of the home (those “intimate details” contained within the house’s interior) and, on the other hand, those leakages of space from the private to the public (those “amorphous hot spots” of Kyllo’s home supposedly detectable by the passer-by). We should not be surprised in the juridical system’s need to codify these spaces, to leave nothing unidentified by vision. However, with the Internet’s move from physical spaces to simply representational spaces, what is at stake here? Of course, new juridical discourses have emerged to re-contain these emerging spaces and technologies, but what the Internet seems to eclipse, or elide, is our previous fetishized attachment to private, that interior of the bourgeois home protected for the sake of procreation and, of course, the continued division of labor. Will there remain sacred space in cyberspace? Or have we moved radically beyond sentimental attachments? When safely tucked inside the interior of our home, do our explorations on the Internet move us into the public? Or do we remain safe from governmental intrusions? Does the physical location of the computer (i.e. public terminal vs. home computer, etc…) make a difference in this case? In the case of the sniffer, must we make a differentiation between, on the one hand, the basic development of a program (a sniffer) capable of tracking peoples’ movements through cyberspace and, on the other hand, the actual logging of these movements?

That’s all for now.

posted by Anonymous at 11:20 PM

What interested me most about the readings for this week were the peculiar issues of vision which arose in the Kyllo v. United States case before the supreme court. There is obviously much at stake in the realm of sense-enhancing technology for the use of surveillance and the intrusion on personal privacy, but what seemed particularly interesting about this case was that it was tackling the use of one enhanced sense to perform the abilities of another. The imaging equipment in question was used to measure heat emanating form a house. The eyes are used to detect that which is usually only measurable by touch or proximity. Here, it seems, is where the true difficulty of the case lay. The arguments which we read were predominantly concerned with whether or not the “intimate details” about the interior of the house were discovered through the use of thermal imaging or not. This boiled down to the question of “through the wall” versus “off the wall” surveillance. Did the heat emanating from the house move out of the private and into the public domain? But at the back of everyone’s mind was the actual surveillance device used, and the sense that it truly enhanced—that of sight. There was not an elaborate set of super-sensitive thermometers which determined the heat surpluses on the roof of Kyllo’s home, it was an imaging device—a device which took literal pictures of heat concentration on the house. This sense-enhancing technology was not enhancing actual vision, it was enhancing our sense of touch over a long distance. It just so happened that the way the technology was readable—the language which the information was coded in—was a visual one. My question is: what if it hadn’t been visual. What if the detection remained purely at the level of a numerical thermal readout? Would this case really have gone as far? I think it wouldn’t have. There is something which we attribute to sight which extends it beyond the realm of the other senses. Ocular proof has been hailed as the truest form of revelation throughout human history. If technical data were the only results of the investigation on the exterior of Kyllo’s home, this case wouldn’t have caught nearly as much attention. But there were pictures; pictures that looked like x-rays; pictures that looked like they were using some highly technical spying equipment to penetrate the walls of a home and reveal what was going on inside. If it were purely told that the temperature outside Kyllo’s roof was five degrees warmer than any of the other roofs on the block, I think that most people would not be up in arms about any blatant invasion of privacy. There is some visceral reaction which humans have to being seen, to being watched. It is something heavily tied up in cultural conceptions of vision and appearance which we wrestle with daily. But the visual haunts abuses us, and it is very clear in this case just how deep our construction penetrates.
posted by Anonymous at 10:47 PM

.(((((((((((((((((((((((((((((

I really like reading these judicial decisions. They are both fascinating and hilarious. It seems that judges, especially Supreme Court justices, struggle with some of the same semiotic issues that we do. What does it mean to search? How do you draw the line between external visual inspection and “penetrating the private sphere” to conduct a search? In light (ha ha) of Keenan, we must question a statement like “Visual surveillance was unquestionably lawful because ‘ the eye cannot by the laws of England be guilty of a trespass’” (4). The gaze (or non-gaze) of the public is the most damaging “search” of all, splitting us (and creating us) in two. Physical searching of property pales in comparison. But this is law, not theory, so I guess the justices aren’t worried about light that breaks (in?) softly...

--------------------------|

From Kyllo v. US, an interesting definition of search->
“In assessing when a search is not a search, the Court has adapted a principle first enunciated in Katz v. United States, 389 U. S. 347, 361: A search does not occur even when its object is a house explicitly protected by the Fourth Amendment unless the individual manifested a subjective expectation of privacy in the searched object, and society is willing to recognize that expectation as reasonable...”

This replaces one questionable word with several others (“subjective expectation”, “society is willing” and “reasonable”). How can you prove expectation? Is sunbathing in your backyard proof that you don’t expect anyone to be watching? I’d say that society is willing (even determined) to recognize an expectation of privacy on the Internet as reasonable, even though that privacy is illusory. By the above definition, our Internet activities should be protected under the 4th Amendment. But the tricky issue of what are “external”, public marks on the Internet and what are private still arises:

”...the question of whether a list of web sites and web pages that have been visited constitutes "dialing, routing, addressing and signaling information" or "content" has yet to be resolved.” (Chang)

Society probably doesn’t have many expectations about who is looking at their addressing information. “They” may not even know such information exists. So that information isn’t private, by the above definition. But should the sphere of privacy depend on the expectations of an uninformed public?

---------------------------|

Is there a connection between the legal notion of “search” and Heidegger’s “research”? The dissenting opinion on Kyllo v. US has an interesting comment:

“All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioner’s home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others?”

Can you passively measure something? The dissentors are distinguishing between devices like x-ray machines that actively send out signals and interpret the result, and devices that receive signals emitted from external sources. Yet according to Heidegger, and as is shown by reality, the police officers had to have a “projection within some realm of what is -- in nature, for example-- of a fixed ground plan of natural events” (118). They quite actively prepared their “experiment” by pointing their heat camera at the house, and interpreted the lights on the screen according to the projection plan which said that “the lights on the screen are where it’s hot” or the like. Thus, there is no such thing as “passive measurement.” This idea is corroborated by quantum physics, which shows that what the experimenter is looking for affects what results they get (most classically, light will appear to be a wave or a particle depending how you experiment with it). So why should the officers have obtained a warrant before the “search”? What’s at stake there? A warrant is like a research grant for scientists. A judge looks at the plan for the experiment, and if it seems like they will “discover” what they are testing for, lets them do their (re)search.

Considering search on the Internet, if we follow Heidegger’s definition of research, every piece of information that Carnivore examines is being searched, if just to see if it is something Carnivore is “supposed” to look at. The “filters” that the government claims to use on Carnivore have to sift through all the packets and find those addressed to the suspicious people (or maybe just those with the word “bomb” in them). Again, the search programs depend on a projection plan which anticipates that there will be packets, says how they should be compared to a list of things being searched for, and interprets the resulting matches as identifying suspicious packets. Each packet is the subject of a tiny experiment, over in a few milliseconds. How is that different from police peeking their heads in every door in a neighborhood to see if a criminal is hiding inside, or taking DNA samples to match against criminal DNA? That’s somewhat of a real question; I’m not exactly confident in the metaphors....

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I also enjoy when the justices have to cite some “obvious” fact in their argument, such as in the Vanna White case: “But an attractive appearance, a graceful pose, blond hair, an evening gown, and jewelry are attributes shared by many women, especially Southern California” (8) or “In this matter, the consumer is confronted with two entities. One is Vanna White. The other is a robot. No one could reasonably confuse the two” (9). The justice can go no farther with legal arguments, and must resort to an appeal to the "common sense" of humanity (or at least, Americans) (or at least, Americans reading legal decisions). Ah, but imagine a future where it IS possible to confuse Vanna White and a robot...

Just wanted to point that out :)

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posted by Anonymous at 9:42 PM

Invasive Property
10 March 2002
Shawn E Greenlee

Is the use of the Internet by private individuals a mode of moving in the public or private sphere? Should we assume that we are always functioning in public while on the Internet or should we rather see our Internet usage as a private encounter and any surveillance conducted by an institution or individual a violation of that privacy, as an unreasonable search and seizure?

In the Chang article on the USA PATRIOT Act, the tracking of Internet usage by the government is seen as being limited only by the search for a specific “content”. Chang states that the FBI claims the Carnivore system does not allow human eyes to see any information that is not permitted within a specific court order. Therefore the FBI is in accordance with the Fourth Amendment because it is filtering through machines so that the only content revealed is pertinent (within the reasonable search). Chang states that no proof of Carnivore’s accuracy or infallibility has been demonstrated and therefore Carnivore seems more of a threat than an asset. The FBI’s desire to use this system is on one hand to avoid violating the privacy of the public at large, and on the other hand to root out information that can be used as evidence to convict criminals. The Fourth Amendment as interpreted by the Katz v. U.S. case tells us that it is our persons that are protected from unreasonable searches and seizure so even when in the public sphere, we can expect to retain our privacy to the extent that we will not be searched without probable cause. In the context of the PATRIOT Act, where privacy is sacrificed to national security interests, how can we not assume that Carnivore will be used to conduct what could be perceived as unreasonable searches? Is the quest to protect national security enough to give probable cause for sweeping searches of all internet traffic even if by machines? The government can put a surveillance camera in a physical public space in the event that I might commit a crime; therefore it only seems appropriate that the government can put a sniffer in the public space of the Internet. (This isn’t to say that I think it should be permissible.)

In the Kyllo v. U.S. case it was ruled that when the Government uses a device that is not in general public use “to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search’ and is presumptively unreasonable without a warrant.” The Carnivore system is obviously a device not in general public use (despite the smaller sniffers out there). However to what extent the personal computer hooked into the Internet is a detail of a private home I am not sure. Surely the contents of our hard drives seem private, the computers themselves are private property… but our movements and discourses on the Internet? We generally think of our actions on the Internet as private but does the nature of the Internet subvert this? (Is the Internet actually public enough that the FBI does not need to filter content because of privacy issues at all?) Is the computer on the Internet a window and thus are actions in that public sphere actually in plain view? Even when information requires illumination, does this necessarily make it intrusion?

In the Kyllo v. U.S. case, the cases of Olmstead v. U.S. (1928) and Goldman v. U.S. (1942) were cited as examples of cases in which electronic surveillance was seen outside the confines of the Fourth Amendment. In the Olmstead case wiretapping was ruled not to be an unreasonable search because there was no physical trespass, likewise no unlawful seizure had taken place because conversation was not a tangible item. In the Goldman case the subject of dispute was the bugging of premises. In this case when a listening device was placed on the outside wall of a room in which the conversation was taking place no violation was found. But when a microphone was driven inside a wall and that device came into contact with a heating duct, which then broadcast the conversation in question, then it was considered a violation. This was because of the Federal Communications Act (1934) that had made it illegal to divulge contents of an intercepted message outside the governmental agency. It was the Katz case (1967) in which the court stated, “Once it is recognized that the Fourth Amendment protects people – and not simply ‘areas’ – against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into a given enclosure.”

In reviewing the annotations in of the 1992 publication of the US Constitution, it states that in Katz v U.S. that Justice White “sought to preserve for a future case the possibility that in “national security cases’ electronic surveillance upon the authorization of the President of the Attorney General could be permissible without prior judicial approval”. In this same annotation Justice Powell’s statement addressed national security issues by stating that the “Government’s duty to preserve national security did not over-ride the guarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. “ Chang’s critique of the PATRIOT Act is warranted, in terms of the consolidation of powers in the Executive Branch. We should be wary of the potential abuse of power and the violation of our Constitutionally guaranteed privacy. However, it seems that with every advance in technology that the rules of law enforcement have a need to adjust proportionally in terms of evidence gathering. But to what extent are we to allow surveillance for the means of intelligence gathering (especially with regard to U.S. citizens or any persons protected under the Constitution - 14th Amendment)? The whole notion of unreasonable search seems a point needing evaluation, especially in regards to publicity operating within our sense of privacy.



posted by Anonymous at 1:38 PM