The Laws Haven't Changed

Julian Sanchez makes the case that advances in satellite technology may have rendered our conventional privacy laws obsolete:

The courts have, to date, not regarded aerial observation by planes as a "search" for Fourth Amendment purposes, under the plain view doctrine. The sensible intuition here is that you have no protected privacy interest in what can be observed without entering your property: If you're foolish enough to put your marijuana crop in front of an open window—or in a field that can be spotted by someone flying overhead—you can't complain if the police notice it. But the analogy to casual observation begins to seem awfully strained when we consider the potential of satellite imaging to create a perpetual record of whole regions of the country, allowing anyone's comings and goings to be tracked. This may, then, present a problem of what Lawrence Lessig has called "Fidelity in Translation": Constitutional rules create a balance between conflicting interests—citizens' need for privacy and law enforcement's need to gather information—but as technology changes, the application of the same rule may produce a very different balance of interests. The question, then, is how, whether, and when fidelity to the Constitution may mean discarding the original rule in order to preserve the original balance.

Of course, another solution here would be for congress to recognize there's a problem and pass a sensible law governing the use of satellite imagery. Sadly, though, we've seen a few times that there seems to be majority support in congress for the view that 9/11 made civil liberties obsolete.

Comments

Yes, there are now more and more devices that can gather information without physical intrusion.

But - as someone who is not involved with the law or with advocacy on the issues involved - I remember a 1998 supreme court case in which it was decided that the police could not use heat detectors to discover homes using heat lamps to grow marijuana without probable cause.

Surely this is somewhat similar to using highly advanced, extremely expensive sattelites (and their spectrographs and heaven knows what) to look down from orbit?

Posted by Warren Terra | August 17, 2007 12:19 AM

Overall, the issue goes far beyond the traditional concept of the "balance" between "privacy" interests and government surveillance.

The communications/computing revolutions mean that the means control -- of monitoring and modeling for feedback and control -- are really cheap for the first time in human history. A lot of laws, which put in place a vague and remote possibility of detection and punishment, may now threaten more universal enforcement.

The concept that we should handicap the government -- try to prevent efficient use of a technology as a metaphoric barrier to expediency -- will have to be discarded. Instead, we should recognize that cheap computing/communication can also make the individual far more powerful. We should be thinking in terms of empowering individuals, legally, in ways that amplify the technological possibilities inherent in our PCs, cellphones, flash-drives, etc.

Satellite surveillance has an exotic element, but, really, all anyone needs is a way to connect your debit card to your cellphone to your DSL account, and a good data-mining operation could quite conceivably assemble all of an individual's daily purchases and movements, cataloguing all of his/her interactions and sojurns, day in and day out.

The country desperately needs a system of secure identification and authentication, with built-in features, like aliases, which would enable individuals to disrupt the relentless attempts of business to control everyone and everything by monitoring the mundane details of daily life, from supermarket preferences to websurfing.

Posted by Bruce Wilder | August 17, 2007 12:56 AM

The other factor missing from this balance test is highlighted by Padilla's trial (which only resulted because the administration moved him into the justice system in the first place, fearing an adverse Supreme Court ruling with regards to his "enemy combatant" status). If you have people who are committed to having trophies highlighting their anti-terror efforts, the use of this info is going to result in trials and incarceration of people for political gain...not public safety.

9/11 changed everything. It sure as hell did. The poltical landscape dictates the legal landscape at this point, not the other way around. Gitmo, FISA, and other "enhancements" of law enforcement abillities have a lot less to do with effective enforcement of the law and/or keeping people safe than it does with politics.

This is bad. The rule of law is suffering as a result, and we will end up putting people in prison to score political points.

And that, in my opinion, is an awful situation. We are consciously sacrficing the freedoms of others (shoot, maybe ourselves if we get caught by the current surveillance net doing something suspicious) in order to maintain an image of being tough on terror.

We are lacking an understanding of the fundamental truth that it could happen to us or someone we know. And yet, we move on and don't care...

On a final point, I'm not a conspiracy theorist, but anyone with any involvement with the criminal justice system (nevermind Gitmo or other extra-judicial situations) knows that once the power of the state is against you, your choice is either to submit or hope to hell you are one of the 5-10% of the accused that is found not guilty. With the terror stakes so high, you can't even flip or try to offer info. You are going to spend the rest of your life in prison. Done.

Fear is what every citizen and patriot should guard against, instead of embracing it like a tonic and using it as an excuse for every legal travesty that has, is, and will be committed.

Posted by abject funk | August 17, 2007 1:12 AM

Unless the military boneheads have made a huge breakthough in the field of electromagnetism that they've managed to keep secret, satellite technology is nowhere near as advanced as the hype surrounding it.

Now if the government is flying spy drones over us...that's a different matter.

Posted by alphie | August 17, 2007 1:29 AM

This is a cousin to the underlying issue in revising FISA. While the BushCo side spoke of the evolving technology used by Teh Terrists!1! to communicate, what was really at stake was all the lovely shiny hardware that the NSA had bought and wanted to put online, given that since the days of Watergate, the tech of snooping has advanced several orders of magnitude further than the tech of general comms.

That's to say, you think your GPS car navigation is funky? The Pentagon has satellites that can tell whether you're grilling brats or burgers on your lawn. You think your iPhone is a lovely combination of communications tech and formats? The NSA can do on-the-fly voice transcription from its black boxes in the phone networks. The days of guys in vans with headphones are long gone, and Moore's Law and the surveillance budget being what they are, the gap between the capacity to communicate and the capacity to snoop is going only one way.

Posted by pseudonymous in nc | August 17, 2007 2:50 AM

When one makes a fundamental mistake in logic, anything less than reversing that fundamental mistake is going to fail.

Trying to "balance" that mistake is not going to work.

The fundamental mistake of the Founders was believing in the state.

That mistake is now coming home to roost, as it has at one time or another in most countries and ethnicities in human history.

New technology is merely one of the enablers of this denouement.

Fortunately, the advance of technology will also correct this within this century. The state and religion - indeed, most of what the chimpanzees laughingly call "human nature" - will be corrected by being eliminated.

In the meantime, as far as I know, no current spy satellite can look through your roof. And if they can, I'm sure somebody will figure or has figured out a way to prevent it by some means which is relatively inexpensive compared to the cost of a satellite.

Not to mention that the closer you focus on one ndividual, the more you miss what the other 300 million are doing. There aren't enough satellites to watch everybody at once. There aren't even enough surveillance cameras to do that.

Of course, nanotech will eventually make it possible to churn out billions of tiny cameras that fly up your butt and record your eating habits and the computers needed to monitor them all. But by that time, nanotech will also make it possible to fool those cameras.

We're spending what, $4 billion, trying to control IEDs in Iraq. We've had such success! Good luck with that.

While the government shouldn't be spying on its citizens, I'm not that worried about it because they simply aren't competent at it. Most of the spying will end up being done against their political enemies in the other party, or even some of their own cronies who they don't *quite* trust.

It's when they start using this sort of tech to directly control the population physically that we're going to have to get cracking and do something about them.

Meanwhile, learn the technology and learn to turn it against them, as hackers have been doing for decades now.

Go to http://www.cryptome.org/ and study up.

Posted by Richard Steven Hack | August 17, 2007 3:11 AM

Just a few additions to Warren Terra's comment:

In Kyllo v. U.S. (2001), Scalia (of all people) wrote a majority opinion rejecting the warrantless search of a residence using thermal-imaging technology. The search revealed a marijuana growing operation in Kyllo's garage. But Scalia's concept of privacy is a moving target, as the holding in the case reveals:

"Where, as here, 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." [My emphasis.]

The clear implication is that advanced technologies "in general public use" can eventually lose their novelty and therefore constrict one's "reasonable expectation of privacy." This could include everything from thermal imaging to Predator surveillance drones to electronic monitoring of WiFi zones.

Posted by M.J. O'Brien | August 17, 2007 4:35 AM

Your comings and goings can be tracked without satellites the old-fashiond way, by having a cop tail you. I don't see how this violates privacy. Your doings in public spaces are inherently non-private. Now if we were talking about devices that could see inside your home then there would be a concern.

Posted by Jonf | August 17, 2007 8:28 AM

Remember that for high resolution satellite imagery you're restricted to specific times -- the imaging satellites can't hover, and they can't cover everything. Their passes are also pretty predictable.
Drones are another matter, as alphie says. The current unpleasantness has seen startling growth in their use by the military, with a reported 7000 drones under 5kg being used in afghanistan and iraq. And the possibilities are not restricted to the government -- http://diydrones.com/

Posted by Oliver Morton | August 17, 2007 8:51 AM

As a long-time professional magazine illustrator (really), I feel compelled to say, "WTF is up with that picture?" Was that the only image that came up when you searched Flickr for "satellite?"

Posted by James Gary | August 17, 2007 9:07 AM

Further to MJ O'Brien's point about the Kyllo ruling, I think one difference here is that the use of surveillance satellites is not something that would "explore details of a private home that would previously have been unknowable without physical intrusion". The images obtainable from a surveillance satellite are the same as the images obtainable from an airplane or helicopter. At least as to items that can been seen with the naked eye from an airplane or helicopter, those are not considered searches requiring a warrant. See California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989). Whether the satellite surveillance can fit squarely under those precedents, I think, depends on what the sattelite can do. Does it give you images like you get in Google Maps? To me, that's getting pretty close to the airplane/helicopter precedents. If the cameras are very much sohpisticated, perhaps it's more of a stretch.

Posted by Al | August 17, 2007 9:38 AM

The real issue with surveillance technologies isn't whether it's legally permissible to conduct warrantless "plain view" searches with satellites, helicopters or drones. The challenge is practical, as demonstrated by London's elaborate network of surveillance cameras: how to prioritize and interpret the gigabytes of data that flow into the system every second. Disclaimers aside, "total information awareness" is still the Bush/Cheney administration's ultimate goal. But a mountain of information can be nearly as worthless as none at all. If the government can monitor everything my neighbors and I are doing, 24/7/365, national security won't be enhanced one iota. Quite the contrary, in fact, since it would divert resources and yield no useful data.

Wherever the legal realities and evolving technologies may lead, we should never consent to live in a society where the "expectation of privacy" approaches zero. The next Congress needs to enact comprehensive protections for personal and electronic privacy. The Supreme Court will be clearly be moving in the opposite direction.

Posted by Geaghan | August 17, 2007 11:13 AM

Re "The challenge is practical, as demonstrated by London's elaborate network of surveillance cameras: how to prioritize and interpret the gigabytes of data that flow into the system every second. Disclaimers aside, "total information awareness" is still the Bush/Cheney administration's ultimate goal. But a mountain of information can be nearly as worthless as none at all "
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NOT True. The purpose of massive surveillance is to ensure the State can track down and grab anyone who attacks it. By checking the RECORDINGS and tracking a subject back to the point where there is evidence which identifies him.

It has already been done here in Philly in solving some crimes. A man who shot a woman was tracked across several city blocks by the police after the fact -- by acquiring video recordings from multiple banks, stores,etc along the way.
Finally they saw where the man entered a building in which he worked and were able to grab him.

But what is of great value when it comes to suppressing vicious crimes and terrorist extremists can also be twisted into a malign instrument for oppression. That is likely to happen when the irresponsible fiscal policies of our elites brings on another Great Depression.

Engage in protests?? Go ahead -- and we will track you back to your home and/or car's license plate -- and pick you up later. Go on strike -- and commit industrial sabotage. Go ahead --we are watching you.

If a single person commits violence, he is a criminal. If he leads a small group, he is a terrorist. If 50% of the population backs him, he is a rebel. If 80% of the population backs him, he is a Stateman.

American workers never got a decent deal until they formed unions, went on strikes, and fought the corporate-owned police who tried to subdue them. Coal Companies tried to set up a feudal system in Appalachia -- and were only stopped by the equivalent of guerrilla warfare.

In many parts of our country, Afro-Americans were treated like animals up until 45 years ago. They became respected as fellow citizens only after they started burning down cities and forming underground units to fight for freedom.

Even then they might have been crushed if the elites of this country --caught in the Cold War --had not been concerned over the Soviet Union making use of them.

Ah, but you will throw the oppressors out of office in the next election??

Go look at the Constitution. Point out to me -- and to Attorney General Gonzales -- where it says you have a right to vote.

Posted by Don Williams | August 17, 2007 11:49 AM

NSA activities are all top secret so we can assume that they have been listening to whatever they want to listen to, and will continue to do so no matter what any law says. In other words the theatrics going on in Washington are just that, no matter what the privacy law discussion is about.

In a state where secret activities are allowed there can be no public control of them, by definition. And a lot of people will accept it: While the government shouldn't be spying on its citizens, I'm not that worried about it because they simply aren't competent at it.

Posted by Don Bacon | August 17, 2007 12:17 PM

One issue with this whether this is an illegal use of the military for domestic law enforcement. If it would violate the law to use Apache helicopters to bust drug dealers, I don't know how you cure that by virtue of the military hardware being in orbit instead of 500 feet in the air.

Second, it seems that this really does come down to what you think the framers meant with the 4th Amendment. Was the prohibition against unreasonable search founded on a concern for convenience, basically, or a fundamental sense of security in your person and home? It seems to me the latter, by a fairly plain reading of the amendment. In other words, I don't think the primary concern motivating the founders was that the damn Redcoats really fucked up your furniture and tracked dirt all over your floor when they busted in to search your writing desk. The government's being able to see through walls, obviating the need to disturb you while you are sitting around in your jammies, does not address the basic concern of the 4th Amendment. A search is a search, whether it is conducted by a SWAT team or camera that can image through concrete.

Finally, for people who are saying that the technology is overhyped, that looking through your roof from orbit is not possible-- two things. First, HOW DO YOU KNOW? As with so many things-- the ability to filter massive quantities of e-mail and phone traffic, for example-- we literally do not have a clue what the current capabilities of our government are. Second, even if the capacity for the worst kinds of abuse are not available YET, it is presumably only a matter of time. We should not base legal and constitutional decisions on the fact that the worst abuses will not be technologically possible until sometime a couple of years down the road.

Posted by Jeff in Texas | August 17, 2007 12:27 PM

M.J. O'Brien's point really underscores just how laughable it is to think of Scalia as an "originalist."

Posted by abject funk | August 17, 2007 1:15 PM

Jeff,

Your first point refers to the Posse Comitatus Act of 1878.

SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus ["power of the county"], or otherwise, for the purpose of executing the laws.

one legal analysis:
"Does the act present a major barrier at the National Command Authority level to use of military forces in the battle against terrorism? The numerous exceptions and policy shifts carried out over the past 20 years strongly indicate that it does not."
http://www.homelandsecurity.org/journal/articles/Trebilcock.htm

On your second point, I agree with you that the fourth amendment provides "a fundamental sense of security in your person and home", or privacy. But the FISA law passed by the Congress allows "searches" w/o a warrant, so the fourth gets no respect from them, or from those who (1) value security over liberty and/or (2) don't think the government is efficient enough to screw up our lives.

Posted by Don Bacon | August 17, 2007 1:36 PM

I agree with all of that. There will be an exception found and expanded if necessary to posse comitatus to allow for the use of military spying, to the extent the objection is even raised in any meaningful way, and the Dems gutted the 4th Amendment with their FISA fix. I find it very depressing.

Posted by Jeff in Texas | August 17, 2007 5:13 PM

"we literally do not have a clue what the current capabilities of our government are. Second, even if the capacity for the worst kinds of abuse are not available YET, it is presumably only a matter of time. We should not base legal and constitutional decisions on the fact that the worst abuses will not be technologically possible until sometime a couple of years down the road."

These are not unreasonable points. However, as to point one, yes, we pretty well do know what the government is capable of in terms of the actual technology.

Back in the Nineties, I think it was, a group of computer and communications industries execs were given security clearances and allowed to view the technology level of the NSA.

They wound up telling the NSA, "Within a few years, you will be deaf, dumb and blind."

That was how far behind the NSA was in terms of dealing with the emerging communications technologies.

The repeated collapse of the development of the FBI case management systems is another example.

The government may have nice little technological gadgets and what not hidden away that only come into play in the most covert of operations, but for the most part, the LIMITS of their technology are fairly well known, at least to specialists in those fields in the commercial sector.

The snafu over the illegal wiretapping revealed by the AT&T case is an example. The hardware being used is commercial hardware - anybody with the bucks (and the connections to a big telecom company) can buy it.

By the way, Israeli companies figure prominently in this sort of thing. Israel figured out a while back that the best way to spy on the world is to be the country that supplies all the spy technology. Which is why an Israeli company got caught selling CALEA wiretapping data to a group of drug dealers in LA. But I digress...

I agree with you about point 2 but the problem is more than deciding how to phrase legislation that won't be made obsolete by technology in a decade or two. (I can assure you that nanotechnology will enable feats of spying that would appear like magic to you in a few decades.)

The problem is that the state - and that includes the courts - will ALWAYS err on the side of overreaching authority. That is the nature of the state.

And as long as the population believes that it doesn't matter what is done to "criminals", drawing a line between themselves and "criminals", then the state will ALWAYS be able to justify further incroachments on civil rights.

Just pop the old question, "You wanna protect pedophiles?" "You wanna protect terrorists?" is only the current use of that tactic - but the pedophile question ALWAYS wins the argument.

The bottom line: the state cannot protect you. The state can only prosecute anybody who harms you - which means they can prosecute you as well.

You have to decide whether having the state around is worth the trouble.

Most people decide on the affirmative. I don't.

Posted by Richard Steven Hack | August 17, 2007 10:14 PM

Re: Engage in protests?? Go ahead -- and we will track you back to your home and/or car's license plate -- and pick you up later.

Um, that would be unconstitutional, assuming the protests are not violent. And if the Constitution is gone or its protection no longer apply, then technology is beside the point: we've aleady lost and even if the government had no better technology than Genghis Khan or Nero had, it would still be oppressive and tyrannical. Pre-modern tyrants after all had no dificulty offing people who opposed them despite not having super-duper gee-whiz surveillance cameras and the like.

Re: They became respected as fellow citizens only after they started burning down cities and forming underground units to fight for freedom.

That's definitely not how the Civil Rights movement triumphed. The riots in fact came later after the court challenges had succeeded (Brown vs Kansas was in 1954 after all) and the laws had been changed-- by peaceful, legal means, not riots and insurrections. Originally the violence came from the other side, the KKK and its ilk, including public authorities like sherrif Bull Connor, and since the vast majority of American do not like it when innocent children are blown up in church, or vicious dogs are set on peacful, decent folks, the Civil Rights movement actually gained the sympathy of the majority and so benefitted-- only to lose it during the supidity of those long hot summers in the late 60s.

Posted by Jonf | August 18, 2007 10:43 AM

Don Williams writes: The purpose of massive surveillance is to ensure the State can track down and grab anyone who attacks it.

But the traditional goal of surveillance (as the under FISA law) is to prevent attacks, not facilitate prosecutions after the fact. If the government acquires massive amounts of data that it's unable to interpret, it can only use that data to identify and prosecute perpetrators later. Since all 19 of the 9/11 highjackers were already dead by the time they were identified, that information was of relatively little value. The same was true with the subway bombers in London.

But Don is right in stressing the growing importance of surveillance in criminal (and political) prosecutions: since 9/11 and the passage of the Patriot Act, the firewall between "proactive" surveillance and law enforcement has eroded considerably in the name of "information sharing."

Still, the monitoring system is deeply flawed if it can accumulate vast stores of data that have little or no value in preventing attacks. And it can become a tool for intimidation and retaliation against political opponents.

Posted by M.J. O'Brien | August 18, 2007 11:52 PM