First, we found out that the NSA has been
performing wiretapping without the benefit of a warrant,
and now it turns out that the FBI and DOE have been
doing
radiation monitoring of a bunch of private sites
1 (without any positive results, it turns out):
In search of a terrorist nuclear bomb, the federal government since
9/11 has run a far-reaching, top secret program to monitor radiation
levels at over a hundred Muslim sites in the Washington, D.C., area,
including mosques, homes, businesses, and warehouses, plus similar
sites in at least five other cities, U.S. News has learned. In
numerous cases, the monitoring required investigators to go on to the
property under surveillance, although no search warrants or court
orders were ever obtained, according to those with knowledge of the
program. Some participants were threatened with loss of their jobs
when they questioned the legality of the operation, according to these
accounts. advertisement
Federal officials familiar with the program maintain that warrants are
unneeded for the kind of radiation sampling the operation entails, but
some legal scholars disagree. News of the program comes in the wake of
revelations last week that, after 9/11, the Bush White House approved
electronic surveillance of U.S. targets by the National Security
Agency without court orders. These and other developments suggest that
the federal government's domestic spying programs since 9/11 have been
far broader than previously thought.
...
Cole points to a 2001 Supreme Court decision, U.S. vs. Kyllo, which
looked at police use -- without a search warrant -- of thermal imaging
technology to search for marijuana-growing lamps in a home. The court,
in a ruling written by Justice Antonin Scalia, ruled that authorities
did in fact need a warrant -- that the heat sensors violated the
Fourth Amendment's clause against unreasonable search and seizure. But
officials familiar with the FBI/NEST program say the radiation sensors
are different and are only sampling the surrounding air. "This kind of
program only detects particles in the air, it's non directional," says
one knowledgeable official. "It's not a whole lot different from
smelling marijuana."
If this distinction seems pretty artificial to you, you're not
the only one. Indeed, this rationale would imply that it was
OK to monitor people's cell phone communications--even
those purely between US citizens and inside the US--without
a warrant as long as you were using an omnidirectional antenna
But we've clearly decided as a society that this isn't OK.
Whenever we run into cases like this, the question I get interested
in is how to build some kind of system that will guide you in
deciding hard cases like this, so you don't have to make them on
a purely ad hoc basis. Operationally, what seems to happen is that
we try on a bunch of such theories to see which ones produce
some consistent set of results we can live with.
Clearly, any theory which produces the result that we're
going to allow anything which you can monitor from public property
isn't acceptable, and it's going to get even less acceptable
as surveillance technology gets better.
Already, we've been forced to restrict many such types
of monitoring (cell phone communications, infrared surveillance),
and attack is badly outrunning defense (think
Van Eck Phreaking)
The framework we seem to be heading toward in Kyllo is one of "reasonable expectation
of privacy". That sounds good in theory, but it strikes me
as rather subjective and problematic. Consider that people have
been telling you for years that Internet communications are
inherently non-private. So, how do you have a reasonable
expectation of privacy for e-mail or VoIP calls (For simplicity
consider the situation in which it's a pure IP call, because
people do expect privacy over the PSTN, and if you call
someone you might not know that they're on a VoIP phone).
And what of the situation of wireless networks, which are
clearly highly insecure.
I don't really have a good answer here, unfortunately. Like many
ethical questions, this seems like
a case where people's intuitions about what's appropriate aren't
easily systematized. That doesn't mean those intuitions are
wrong, of course, but it probably does mean that we should be
cautious about how confident we are of them. And, worse yet,
this kind of uncertainty makes it very hard to predict in
advance what will and will not considered acceptable by the
legislatures and the courts.
1. And isn't the timing amazingly coincidental?
It seems to me that there are three major possibilities:
- The wiretapping story prompted someone to leak.
- US News has been sitting on this story and this prompted
them to publish it.
- it's a total coincidence.
(3) seems the most unlikely of these. I can't decide whether
(1) or (2) is the most interesting, but both imply that there's
may be more revelations coming sooner rather than later.