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Old January 23, 2013, 09:20 PM   #1
sigcurious
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NYPD...More Shenanigans...

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It seems their recent handslapping over their "Stop and Frisk" program hasn't deterred them from further 4th amendment side stepping.

It's worrying that measures like this are not stopped before they go ahead and will likely only be stopped(if the technology goes live) after a number of people have had their rights violated. Particularly in light of similar practices already being ruled a 4th violation. Kyllo v US
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Old January 23, 2013, 09:32 PM   #2
ScottRiqui
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I would think this would clearly run afoul of the 4th Amendment, since it relies on a visual depiction using information that's outside the scope of human senses. It's one thing to use binoculars or a parabolic microphone to extend human vision/hearing, but I doubt that a warrantless search using thermal imaging technology will pass muster with the courts.
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Old January 23, 2013, 09:57 PM   #3
Aguila Blanca
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I believe the Supreme Court has already ruled that such is not permissible.
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Old January 23, 2013, 10:01 PM   #4
Al Norris
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But ... but ... This doesn't use infra-red tech! This device uses radiation from the TeraHertz region! The Supremes only opined in the Infra Red spectrum... ... ...

Yeah! That's the ticket. Stick with that argument, fellas.
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Old January 23, 2013, 10:07 PM   #5
KyJim
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More importantly, the Court in Kyllo relied heavily on the heightened privacy interest in one's residence. This would be out on the public street. Not saying I think it is okay, just a point of distinction.
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Old January 23, 2013, 10:09 PM   #6
sigcurious
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Al, that's exactly what concerns me. That they likely know they're treading on thin ice and would rather trample people's rights until told not too(not to mention waste tax payers dollars).
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Old January 23, 2013, 10:27 PM   #7
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KyJim, that's definitely a concern if this technology goes forward. Hopefully the courts will see fit to not think the distinction is enough to uphold the use of the technology.
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Old January 23, 2013, 10:31 PM   #8
Al Norris
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I understand that distinction, KyJim.

However, this is still a suspicion-less search and slaps the Terry decision all to hell.
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Old January 23, 2013, 10:32 PM   #9
ScottRiqui
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Quote:
KyJim, that's definitely a concern if this technology goes forward. Hopefully the courts will see fit to not think the distinction is enough to uphold the use of the technology.
Well, other than the visible spectrum (which is visible, obviously), the boundaries between the various regions of the electromagnetic spectrum are largely man-made and arbitrary. This technology works on the same basic principle as night-vision equipment and thermal imagers, just at even longer wavelengths. If anything, the wavelengths being detected by these scanners are even further outside the range of normal human perception, so I think the same arguments will hold.

The "in public" versus "inside your own home" aspect does concern me, though.

EDIT - got my posters confused. I was responding to Al's point that the courts haven't specifically addressed terahertz imaging yet.
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Old January 23, 2013, 11:34 PM   #10
Al Norris
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That's OK, Scott. I was being facetious anyway.
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Old January 23, 2013, 11:38 PM   #11
ScottRiqui
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Sadly, I couldn't tell - I thought the bolded part of your post was something you'd found in the "comments" section of a news article on the subject - it wouldn't have been out of place!
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Old January 24, 2013, 12:09 AM   #12
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With His Dishonor in charge, and backed by His Disgrace,the Duke of New York State, this will proceed full speed ahead.
Having said that, I certainly hope the courts slap this down with penalties, fast.
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Old January 24, 2013, 12:17 AM   #13
Aguila Blanca
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Link to Kyllo: http://supreme.justia.com/cases/fede...3/27/case.html

Kyllo was about a search of a home, but the core of the ruling was about where one might have a reasonable expectation of privacy. And it would appear (to me), based on the language from the Kyllo decision, that one's pocket (or underwear) is likely to be as protected against warrantless search as one's living room.

Quote:
Held: 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. Pp. 31–41.

...

(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home’s interior—the prototypical and hence most commonly litigated area of protected privacy—there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman v. United States, 365 U. S. 505, 512, constitutes a search—at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 33–35.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a search. The Court rejects the Government’s argument that the thermal imaging must be upheld because it detected only heat radiating from the home’s external surface. Such a mechanical interpretation of the Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. Also rejected is the Government’s contention that the thermal imaging was constitutional because it did not detect “intimate details.” Such an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details. See, e. g., United States v. Karo, 468 U. S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide a workable accommodation between law enforcement needs and Fourth Amendment interests. See Oliver v. United States, 466 U. S. 170, 181. Pp. 35–40.
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Old January 24, 2013, 05:22 PM   #14
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Quote:
Kyllo was about a search of a home, but the core of the ruling was about where one might have a reasonable expectation of privacy. And it would appear (to me), based on the language from the Kyllo decision, that one's pocket (or underwear) is likely to be as protected against warrantless search as one's living room.
Which is why we don't have any body scanners at airports or . . . But we do!

As an aside, there was finally enough pressure on TSA so that they are getting rid of the backscatter body scanners in favor of technology that gives only a more "cartoon-like" image of the human body and, presumably, any contraband. http://www.policymic.com/articles/23...ancer-concerns. What if these machines out on the streets also only provide "cartoon-like" images? Does this lessen the intrusion and justify use of the technology on public streets? This is all very Orwellian to me.
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Old January 26, 2013, 11:10 AM   #15
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The situation at the airport is a little different that someone walking down the street.

When I buy an airline ticket, I have consented to a search of my person and my luggage. In fact, I will not fly unless I am certain that every other passenger has also consented to an equivalent search.

Honestly, I don't know where in the ticket-buying process I have consented. It is probably in the fine print somewhere.
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