Habeas Data_Privacy vs. The Rise of Surveillance Tech Page 15

  (c) Decisions about whether to use surveillance technology for data collection and how to use and store the information collected should not be made by the agencies that would operate the technology, but by the elected bodies that are directly accountable to the residents in their communities who should also have opportunities to review the decision of whether or not to use surveillance technologies.

  If passed as it was drafted, every law enforcement entity in the Golden State would be required to create a Surveillance Use Policy, describing exactly how particular technologies are going to be used. In addition to that, municipal and county agencies would be required to produce an annual Surveillance Technology Use Report, which, among other things, would list the costs and benefits of surveillance technologies.

  The bill would have been the first state law in the nation to bring the acquisition, use, and evaluation of such technologies to the fore. But, as of September 2017, the bill died in committee.

  For now, LPRs have shown no sign of abating. Every month, more and more law enforcement agencies are deploying them. As the cost of this technology falls and the level of sophistication increases, it will only be a matter of time before it becomes easy enough to run on a smartphone. Just like LPRs enable police to see and capture data that no human ever could in public, so too can other technology do so in private.

  CHAPTER FIVE

  Can the Police Use Extrasensory Technology to Look into Your House Without a Warrant?

  The Fourth Amendment does not require that citizens take extreme measures to protect the privacy of what one cannot see, feel, hear, taste, or smell out of fear that the government might be able to employ new technologies that reveal what may be going on inside their homes.

  —KENNETH LERNER

  BRIEF FOR PETITIONER, UNITED STATES SUPREME COURT

  KYLLO V. UNITED STATES (2000)

  January 24, 1992

  Florence, Oregon

  Around 6:30 AM, on a chilly winter morning in a small coastal town due west of Eugene, Oregon, Danny Kyllo, 27, was in the shower when he heard repeated banging at his front door.

  His first thought was that it must be his girlfriend’s ex-boyfriend—she had told Kyllo that her ex was “a bit crazy.”

  He threw a towel around his waist and walked towards the front door, but before he could open it, the door was kicked in. Nearly two-dozen law enforcement agents burst into his living room, with guns pointed right at him.

  “Down on the ground, get down on the ground!” one yelled at him. Kyllo complied, and fell to the floor, with the towel slipping slightly off of his waist.

  Eventually, the agents let him sit in a chair and began questioning him.

  “We know through an informant that you’re selling pot in Brookings,” one said, referring to another small coastal town about three hours south, near the border with California.

  But Kyllo knew his rights.

  “No, I want to talk to my attorney,” he told them.

  While this interrogation was going on, a 27-year-old National Guard officer began walking through the small corner unit of the triplex on the corner of Rhododendron Drive and Hemlock Avenue.

  Sergeant Dan Haas was there to confirm the thermal scans that he had done about a week earlier around 3:00 AM with a small, camcorder-sized device known as the Agema Thermovision 210, showing that various parts of Kyllo’s apartment were reading hotter than others.

  While infrared scans are somewhat routine now, these devices were not in common use by local law enforcement at the time. This one was on loan from the Oregon National Guard; the Lane County Sheriff’s Department surely didn’t have one. In fact, it very well might have been one of only a handful of such devices in use in Oregon at the time.

  Thermal scanners display pixelated images with anything that gives off heat showing up in different shades of white; the brighter the shade, the more heat the object is giving off. When Haas looked through the imager’s viewfinder on January 16, the hottest thing outside was a power line transformer; but Kyllo’s apartment glowed like a Christmas tree.

  Kyllo’s home wasn’t the only location in Florence that he was asked to do an imaging scan of that night. There were three others, analogous to a police lineup: one was the “target” location (Kyllo), while the others were effectively dummy locations. None of those other locations came anywhere close to outputting the level of energy that Kyllo’s place was.

  Haas didn’t have a warrant to conduct the thermal scan—but as far as he knew, he didn’t need one. The entire investigation was based on the fact that law enforcement, originally spearheaded by a Bureau of Land Management (BLM) agent, William Elliott, had managed to subpoena Kyllo’s utility records. The government claimed that Kyllo was somehow drawing much more power than was normal for that area. Based on that, and an informant’s tip that Kyllo was selling marijuana, Elliott was fairly certain that a thermal scan of Kyllo’s home would reveal something.

  “Our policy was pretty clear…that you [don’t] go out and look for something that’s hot and start an investigation,” Haas told me. “This was to be used as the last coat of mortar on the wall after you had built your probable cause. This was to be used to confirm other information that you had. And that was what it was most often used for.”

  In the late 1980s and early 1990s, Haas served numerous times on counter-drug operations. He and his fellow guardsmen often provided perimeter security, in their battle-dress uniforms, to free up local police to conduct raids of various suspect drug locations.

  “We just kept the public back and kept any bad guys from fleeing the scene,” he told me.

  But on that chilly January morning, Haas walked through Kyllo’s place. With clothes and odds and ends strewn about, it reminded Haas of his college apartment.

  “It didn’t have a maid or Mom there cleaning up,” Haas quipped.

  The primary difference was that this small apartment was filled with grow lights and marijuana plants—the ceiling was full of halogen lights, each one blazing out at 1,000 watts, and each light had a dozen or so plants growing underneath. As he stepped around the growing plants, Haas made his way to the nearby garage, which featured a small nursery for growing new buds. All in all, it was over a hundred plants, perhaps even as high as 300.

  The map that Haas had created of the property based entirely on heat imaging scans was now starting to match up with the walls, doors, glass, and other materials that he found in the small house. Eventually, Kyllo was allowed to get dressed before he was driven hours away to a local jail in Portland. He was charged with one count of growing marijuana, punishable by only a few years in prison.

  However, it took a little extra time for Kyllo to get released on bail. After all, it was the same weekend as Super Bowl Sunday, where the Washington Redskins defeated the Buffalo Bills by a score of 37–24. On Monday, Kyllo’s mother, sobbing, came to pick him up from jail—she found him with shackles on his wrists and ankles.

  Soon after being released, Kyllo got a call from his court-appointed attorney, Ken Lerner, who’d noticed immediately that the government did not have a warrant to use the imager. Perhaps there was a way to challenge the search, and therefore get the fruits of the search (the drugs) suppressed.

  * * *

  In the early 1990s, Robert Thomson was just beginning his career as a rank-and-file federal prosecutor, an assistant US attorney. Based in Portland, the US Attorney’s Office was in charge of covering a vast swath of the state.

  Originally a California lawyer, Thomson moved to Oregon in 1980, first to Eugene and later to Grants Pass, a town that proudly proclaims “It’s the Climate!” in a large banner that hangs above a downtown street. Thomson quickly figured out that he was in the heart of “Southern Oregon bud.”

  “They were referring to the climate for growing roses and pears, and it was a good climate for growing marijuana, too,” Thomson told me. “I spent two years doing nothing but drug cases, and the vast majority was growing marijuana.”
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  At the time, a lot of cannabis plants were being grown outdoors, often on federal land run by the BLM, a division of the Department of the Interior.

  Prosecutors often work in tandem with various agents across different branches of law enforcement, together developing a nose to investigate cases that they’re commonly interested in. As Thomson began working more and more marijuana cases, he began to develop a professional relationship with a BLM agent named William Elliott.

  One day in 1991, Elliott came to Thomson and said that he suspected that a man named Danny Kyllo was growing marijuana in his house. He’d learned this, he explained, through investigating Kyllo’s next-door neighbor, Tova Shook, who lived one unit over with Kyllo’s sister, Lori Kyllo. Tova was the daughter of Sam Shook, the original target of Elliott’s investigation.

  As Elliott’s investigation of Sam Shook evolved, he contacted state and local law enforcement, who told him that Danny Kyllo lived in a triplex unit next door to Tova Shook, and that a police informant unknown to Elliott had told local authorities that Danny Kyllo could supply the informant with marijuana. With this information, Elliott subpoenaed Portland General Electric for Danny Kyllo’s electrical usage records. After looking them over, Elliott believed that Kyllo’s were abnormally high.

  So Elliott came to Thomson, seeking legal advice, asking if it would be OK for him to use a thermal imaging device and scan Kyllo’s house from a public street to use in conjunction with the other information that they had, as a way to really solidify his case against Kyllo.

  “There had been a number of attempts by defense counsel to challenge the use of thermal imagers, but none had succeeded,” Thomson said. “But the state of the law was pretty clear, we thought. In our estimated opinion, it was not a search.”

  This legal opinion seemed to be well-founded. It was based on a combination of a number of legal precedents, including Katz v. United States, Smith v. Maryland, and others. Essentially, the argument boiled down to the notion that there was no reasonable expectation of privacy in the natural physical emissions (infrared light) from a home. So long as the scan was being conducted from a public road (as opposed to right up against Kyllo’s door), it was well within the bounds of the law—or so the theory went.

  In fact, less than two months later, by pure coincidence, the Office of Legal Counsel (OLC), the advisory body to the Department of Justice (DOJ), published an opinion for the general counsel of the Department of Defense (DOD). In essence, the OLC signed off on the DOD’s use of a forward-looking infrared camera (FLIR) to assist local law enforcement.

  During the previous couple of years, various military legal experts reached different results: with some finding that it was a search, and others saying that it was not. One notable DOD memo, known as the Smith Memorandum, concluded that the warrantless use of a thermal imager was a search, citing United States v. Knotts. This would have made such thermal scans illegal without a warrant.

  But the OLC disagreed:

  Courts generally have held that the relevant question for determining whether surveillance infringes upon a legitimate expectation of privacy is not merely how information is collected but what information is collected. If an object of government surveillance is recognized by society as enjoying a privacy interest of sufficient magnitude, the government’s activity will constitute a “search.” Technology that allows the government to view the interior of a home almost certainly implicates the Fourth Amendment. But we are not prepared to say, as the Smith Memorandum suggests, that any “extra-sensory” technological development that assists authorities in ferreting out crime is automatically one that society would deem unreasonably intrusive, no matter how minimal the intrusion on the privacy interests of the citizenry. The Supreme Court has “never equated police efficiency with unconstitutionality,” Knotts, 460 U.S. at 284, and we fear that acceptance of the Smith Memorandum’s analysis would come perilously close to doing so.

  As such, federal investigators went ahead with using the FLIR.

  “But this was for all intents and purposes, we thought, a very routine case,” Thomson added. “It was not something that I would have ever imagined would have ended up in the US Supreme Court.”

  But this was the first time that Kenneth Lerner, a silver-haired, soft-spoken veteran Portland-based defense attorney, stepped into the issue. By the time 1992 rolled around, Lerner had been working for the previous 18 years as a defense attorney, including a stint from 1981 through 1990 as the assistant defender at the Federal Public Defender’s Office in Portland.

  Lerner picked up on a potential avenue to challenge the government’s case: the notable absence of a warrant.

  “I was so happy that I got an attorney that brought this up,” Kyllo said years later. “I wouldn’t have thought this up. I didn’t know what a thermal imager was at the time.”

  As the case moved ahead, Lerner filed a motion to suppress evidence on behalf of his client, arguing, essentially that law enforcement did need a warrant to use the thermal imager to scan inside someone’s home.

  Lerner also challenged the government’s claim about the power usage in court.

  “This was one of the major points of contention we raised in challenging the search warrant to begin with,” he said. “We asserted that this claim was factually not true and [Elliott] knew it.”

  As Lerner tells it, Elliott altered a power utility chart that he’d received from the local electrical utility. In his affidavit, as part of the warrant application, Elliott indicated that Kyllo was using more electricity than he should have, when in fact he was well within a normal range. The judge agreed with Lerner that Elliott was in the wrong. But since the judge thought that the officer had been merely negligent—and not deliberately reckless—he allowed the warrant application to stand. Years later, Lerner called this result “galling.”

  “It was clear that Elliott manipulated the chart without any basis and without any effort to discuss his situation or verify his assessment with the people at [Portland General Electric] who created the chart,” he continued. “A person’s life can turn on whether a single judge makes a determination on whether that sort of failure, when swearing an oath to the truth of factual claims, is reckless disregard for the truth, or mere negligence.”

  The district court denied the motion in December 1992, which meant there was only one obvious legal strategy left: plead guilty and preserve the right to appeal. Kyllo did so in March 1993, and in June, the judge sentenced Kyllo to five years and three months in federal prison.

  Nearly immediately after sentencing, the case was appealed up to the 9th US Circuit Court of Appeals, which ruled that the district court had to hold an evidentiary hearing to learn more about how exactly the Agema Thermovision 210 worked. The case continued on for years, bouncing between the district court and the 9th Circuit. During that time, numerous media outlets and legal scholars reported on the use of thermal imaging as “the government’s most recent weapon in the war on drugs.”

  Eventually, after one of the appellate judges retired, and a new panel of judges had to be selected, the 9th Circuit finally reached a conclusion in September 1999.

  After years of work, the 9th Circuit found that the use of the thermal imager was not a search, and so no warrant was required. Citing Katz and Smith, the judges concluded, echoing Justice Harlan’s two-part test: “We evaluate whether the individual has made a showing of an actual subjective expectation of privacy and then ask whether this expectation is one that society recognizes as objectively reasonable.”

  Then, after citing other appellate courts that had not found that a Fourth Amendment search had taken place in similar cases, the 9th Circuit in Kyllo wouldn’t either. Practically mocking the entire exercise, the court wrote, “Whatever the ‘Star Wars’ capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing.”

  Worse still, as the 9th Circuit saw it, because Kyllo “made no attempt to conceal thes
e emissions,” he couldn’t possibly say that he had a privacy interest in the infrared energy released from his marijuana grow operation. (How he was supposed to have done so, the 9th Circuit did not address.)

  On November 13, 2000, Lerner filed an opening brief with the Supreme Court. The brief made note of thermal imaging’s development since Kyllo’s home was first scanned.

  Thermal imaging is becoming ever more technologically advanced at an astounding pace, with virtually limitless application (JA 38-9, 42-3, 133, 160-1). It is now possible to obtain clear images of items no bigger than an inch or two from navigable airspace, and computers can provide for even greater enhancement. (JA 43) The military is the largest market for thermal image technology, and is taking an increasing role in domestic law enforcement (JA 152).

  Primarily, Lerner’s argument relied on the notion that the warrantless use of a thermal imager was, in fact, a search. The brief made heavy reference to Katz, but noted that it did not apply: Katz concerned privacy interests outside the home, while Kyllo was firmly within the four walls of his own house.

  “Even if Katz [was] the proper analytical method, Mr. Kyllo certainly had a subjective and reasonable expectation of privacy in the activities he conducted in his home,” Lerner wrote. “He took normal precautions against observation by conducting his activities inside his home. The Fourth Amendment does not require that citizens take extreme measures to protect the privacy of what one cannot see, feel, hear, taste, or smell out of fear that the government might be able to employ new technologies that reveal what may be going on inside their homes.”

  In response, government attorneys countered that because the use of the thermal imager was not a search, law enforcement agents did not need a warrant. In its opening lines of its own brief, the DOJ echoed the decades-old reasoning in Olmstead v. United States (“There was no searching. There was no seizure.”), which found that there was no search in a wiretap of a bootlegger’s home.