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August 25, 2010

Good News! If You Like Full Body Scanners At The Airport, You're Going To Love It When They Come To Your Neighborhood

Via Congressman Jason Cahffetz (R-UT) who says, "There must be limitations on this".

"This" is the use of full body scanner technology on American streets.

As the privacy controversy around full-body security scans begins to simmer, it’s worth noting that courthouses and airport security checkpoints aren’t the only places where backscatter x-ray vision is being deployed. The same technology, capable of seeing through clothes and walls, has also been rolling out on U.S. streets.

...

Though Reiss admits that the systems “to a large degree will penetrate clothing,” he points to the lack of features in images of humans like the one shown at right, far less detail than is obtained from the airport scans. “From a privacy standpoint, I’m hard-pressed to see what the concern or objection could be,” he says.

But EPIC’s Rotenberg says that the scans, like those in the airport, potentially violate the fourth amendment. “Without a warrant, the government doesn’t have a right to peer beneath your clothes without probable cause,” he says. Even airport scans are typically used only as a secondary security measure, he points out. “If the scans can only be used in exceptional cases in airports, the idea that they can be used routinely on city streets is a very hard argument to make.”

Chaffetz seems to be leading the charge against this.

There may well be some exceptional emergency cases where this technology can reasonably used but like anything else, it can be over used. I know a lot of people don't like 'slippery slope' arguments but I think history is pretty clear that once a technology is opened up like this, the envelope will always be pushed. Think of UAVs now being used in law enforcement, closed circuit TV systems and now in the 9th Circuit, the government can sneak on to your property an place a GPS
device on your car and track you.


This case began in 2007, when Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle's underside.

After Pineda-Moreno challenged the DEA's actions, a three-judge panel of the Ninth Circuit ruled in January that it was all perfectly legal. More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, decided this month to let it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.)

In fact, the government violated Pineda-Moreno's privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a fancy legal term for the area around the home. The government's intrusion on property just a few feet away was clearly in this zone of privacy.

The judges veered into offensiveness when they explained why Pineda-Moreno's driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited. (See the misadventures of the CIA.)

Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's. The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist," he wrote. "No truly poor people are appointed as federal judges, or as state judges for that matter." The judges in the majority, he charged, were guilty of "cultural elitism."

I'm not sure the rich/poor argument is all the convincing but I haven't read Kozinski's full opinion yet. I hope he made the more mundane and defensible argument that trespassing laws apply to cops too, oh and attaching something to your property without your consent that in effect makes you testify against yourself is unconstitutional under the 4th and 5th Amendments.

And via some guy named "Ace"... Precrime is here.

I really think we're getting to the point where the marginal gains in public safety we may make are outweighed by the idea that the government can and should use every conceivable tool at its disposal to fight crime. At what point does the supposed preventative/cure become worse than the actual disease?

It's also very interesting that there's a huge outcry about the Arizona immigration law that mirrors existing federal law but not much of a peep about this stuff. At least the illegal aliens are being asked for their papers and know they are under investigation, these kinds of technological intrusions simply by pass those steps all together.

(GPS story via noted neo-libertarian Andy Levy)

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posted by DrewM. at 04:28 PM

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