TRI In The News

NYPD Should Get a Warrant Before Using Gun-Scanning Beam

January 23, 2012

From NY Daily News

What masters we are of the ability to create high-tech tools with actual or potential use to law enforcement. Think of it: surveillance cameras; GPS and cell-phone tracking; tiny radio frequency identification chips that enable us to pinpoint an object’s location.

Then there are the objects in the “coming soon” category: tiny “smart dust” sensors that can detect light and movement; facial-recognition software; drones, and too many more to count.

Now we learn the NYPD and the federal government are jointly developing infrared scanning technology that could someday soon give them the power to remotely detect concealed firearms on people. If that doesn’t have privacy implications, it’s hard to think of what would.

Understandably, the police prefer to use this newest device without any constraints. Certainly we want law enforcement officers to be safe. And we don’t want guns in the hands of criminals or hotheads, especially in an urban environment.

But do we want to give the nation’s 870,000 federal, state and local law enforcement agents free rein to deploy such wizardry?

If history is our guide, and as statistics generated under New York’s stop-and-frisk laws suggest, these tools would be used most frequently to target the poor and minorities. And what of innocent targets of such surveillance who might never learn that their privacy was violated?

This raises another profound concern. As the Rutherford Institute’s John Whitehead has cogently noted, “this is scary. It poses us all as suspects and conducts searches without probable cause. What other objects will come under scrutiny? Pill bottles? Cigarette cases? And on and on. Such systems are rife with the potential for abuse.”

While the answer is not easy, I think that the balance comes down on the side of requiring a warrant from a judge before such spyware is employed, absent a legitimate emergency where there isn’t time to seek a warrant. The Framers designed the Fourth Amendment to safeguard the people’s privacy and as protection from arbitrary invasions by government agents.

Its command is simple: Warrantless searches are, with narrow exceptions, presumed to be unconstitutional. Before the police conduct a search, a neutral and detached magistrate must agree there is probable cause to justify the intrusion.

That decision cannot be made by the officer engaged in the often competitive enterprise of ferreting out crime.

Demanding a warrant before using infrared tools to pry under an unsuspecting person’s clothing would be faithful to precedent: In a case called Kyllo vs. United States, the Supreme Court ruled that law-enforcement officers should not have used thermal imaging devices without a warrant to capture information about the heat in a suspected marijuana grower’s home, even though they could have gleaned the same information without a warrant by observing snow melting off the home’s exterior.

Of course, Kyllo involved the home, where Fourth Amendment protection is strongest. And the police do not need a warrant to visually observe people’s movements on the street. But the Fourth Amendment protects people, not places; we’re not shorn of all protection by stepping onto the sidewalk.

In the case of this gun-scan beam, we are talking about something that is not a mere enhancement of normal human sensory capacity, but an apparatus that facilitates a totally new perception of the world. So I find myself in agreement with the late Prof. William Stuntz, who wrote that because the “government can easily condition the citizenry to expect little or no privacy,” “the law’s solution is to tie its protection to what people expect from one another.”

I know of no one who uses infrared technology to furtively scan others through their clothing. Indeed, anyone doing that would likely be committing the civil tort of invasion of privacy.

Requiring a warrant for the use of gun-scanning infrared technology wouldn’t have to make the police less efficient than they were before these devices were invented. It is not difficult to get approval from a judge: According to the Electronic Frontier Foundation and the Center for Democracy & Technology, in 2010 all but one of 3,195 applications for wiretapping were granted.

I am not suggesting that officers on the scene who imminently fear for their safety and have no time to obtain a warrant should be powerless to use new technology to detect a weapon. The law recognizes a limited exception for such circumstances — if the situation is urgent.

But warrants must be the rule, not the exception — or we are risking, if not inviting, a future of unchecked police knowledge and power.