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Comment by paulsutter | Hacker News Reader

The actual text of the fourth amendment is pretty elegant. One paragraph explaining the legal requirement for probable cause and a specific search warrant:

- "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

We don't need to justify privacy rights. The constitution already does that.

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It's the fuzziness that these backscatter machines bring in that's the problem. Is it really a search if you're bouncing invisible light through an object and measuring latencies? Does the concept of a search fundamentally mean "discovering property that was previously unknown"? Or is there a clause to that definition, something like "unless it is readily visible"? Can any legal guys chime in on what the definition of a search is?

http://en.wikipedia.org/wiki/Kyllo_v._United_States

IR sensors used on a home constituted a search so could not be used without a warrant. This would likely end up in a similar ruling, especially since it can provide more detail than that the walls and roof are hotter than they ought to be.

Maybe not. Although I don't believe this should be allowed, one can make an argument that the expectation of privacy when in the home is much greater than when one is out in the street, or even in one's car.

In addition to privacy, I'm just as concerned about the potential danger of exposure to X-rays.

I wonder if the van operators have considered how readily those X-rays could be detected. By the sort of people who might want "advanced notice" that they're about to be under surveillance?*

I wonder how long it'll be before things like this become "prohibited items" to regular citizens to own: http://www.cooking-hacks.com/index.php/documentation/tutoria...

A network of those with bluetooth or wifi connections, spread around critical intersections around the place where you're particularly concerned about your privacy could give you more than enough time to reconfigure things into something that'll look quite different on an x ray screen...

*Or the sort of people who construct IEDs?

> The Supreme Court ruled 5-4

That's a very narrow victory though.

>That's a very narrow victory though.

Yes, but at least three major parts of the dissenting opinion do not apply to backscatter machines.

First, Justice Stevens argued that heat emissions can easily be detected by the general public by a variety of means that do not involve special equipment.

Secondly, he argued that heat emissions are a part of the public domain once they leave the home, and are therefore fair game for inspection.

Finally, he argued that because the data provided by the sensors was incredibly crude, and gave no specific details about the home's contents, their use did not constitute a search.

And while I disagree on the whole, all of those are at least reasonable points that a sane person could make regarding IR sensors. But they utterly disintegrate if you switch to talking about firing x-rays into someone's home or car and generating a detailed image of its contents.

How long before they will start selling a lead-based shields to cover your entire house (inside) in order to protect yourself, your body and your family (even your dog) against all those invasive red/infrared/long/short waves that government is about to shoot at your house, without probable cause, just because they can.

I can see an eager SWAT team ready to raid that family house on the corner because since they have those shields they must be terrorist, or at least doing something illegal!

dpeck, keep in mind that the "ideologies" aren't always straight-forward...scalia authored the majority opinion in the heat-sensor case

Seems like almost everything to come before the court comes back with a 5-4 ruling, at least everything important. Ideology is wired into the justices as much as it is everyone else.

I read somewhere that the prevalence of narrow victories is by design (or evolution maybe): 1. the court chooses what cases to hear and is unlikely to spend time on anything they all agree on; 2. the body of precedent is large enough so that lower courts aren't making decisions the court would overturn with a wide margin; 3. the parameters of a majority opinion are written to get 5 of 4, anything else is overkill or watered down.

This one wasn't a traditional liberal/conservative split, though, so if it's ideological, it's on a different axis. The majority opinion was Scalia/Thomas/Ginsburg/Breyer/Souter, i.e. 2 conservatives and 3 liberals. The dissent was Stevens/Rehnquist/O'Connor/Kennedy, i.e a liberal, a conservative, and two moderate conservatives.

Still a victory. And, as I pointed out, this tech has much greater potential for interpretation as search as it's providing greater detail than "roof and walls are hot".

IANAL, and I'm sure that I'm in the minority with this view.

But I understand the 4th Amendment to engender a freedom from scrutiny. If they don't have any reason to thing we're doing evil, they should mind their own business, regardless of the degree of physical intrusiveness involved.

Just having the government, or its computers, paying attention to us all the time violates this principle.

As I just commented [0], I believe the same thing. I would point out that "freedom from scrutiny" shouldn't necessarily apply to relationships between private citizens. I think "reasonable expectation of privacy" applies between private citizens (so it's not wrong for a neighbor to observe my house), but when it comes to government resources (i.e. taxpayer money) the standard should be much stricter.

[0] http://news.ycombinator.com/item?id=4191486

That it's government being restricted by the right to privacy goes without saying. As part of the Bill of Rights, it restricts only the government[1].

The intent of the BoR is just to keep the government from meddling, not to prevent the people, as those directly creating the culture and society, to react as they see fit. The government isn't permitted to stop us from saying bad things [2], but you're perfectly free to respond to the offensive comments of your neighbor. A court mind find someone innocent of a crime as a result of "technicalities" from the the 4th Amendment, but you're still free to shun a person that you believe to be evil.

[1] And, without explicit incorporation by the Court under the 14th Amendment, it applies only to the federal government and not the states. That seems pedantic, but it was only very recently that this was recognized for the 2nd Amendment, for example.

[2] Which doesn't stop them from doing so anyway; see recent legislation about cyber-bullying, for example.

"Unless it's readily visible" in which spectrum? Whether X-ray, terahertz, microwave, UHF, or visible light... it's all just electromagnetic radiation. Seems weird to make distinctions. To me (and trust me, IANAL) it seems that any law governing a "camera" should be equally-applicable.

It's actually a pretty easy line to draw; the spectrum is the visible spectrum of the average human. The reason is that this makes it trivial for citizens to know what constitutes "in plain sight", and thus to control what lies in plain sight. If it bothers you that a legal matter is based on fuzzy lines defined by human physiology, then welcome to the entirety of pretty much all law everywhere.

It's certainly not the actual legal definition of a search, but I would like it to be defined very broadly, something like "the use of government resources (i.e. taxpayer money) to observe or inquire about any private citizen on private property."

Even though it's perfectly legal for a neighbor to notice something potentially suspicious about me (e.g. that I travel a lot or have a lot of guests), I don't think that taxpayer money should be used for concerted observational efforts without some form of court order.

my memory of criminal procedure is fuzzy, but i believe a search is generall defined as an invasion of a "legitimate (or reasonable?) expecation of privacy."

so of course, disputes generally hinge on whether someone's subjective expectation of privacy is objectively reasonable or legitimate.

when i get a minute i'll edit this post with some examples!

Why do it at all if there is nothing discernible in the results?

the problem with the 4th amendment (really with any of the amendments jefferson wrote) is that it uses vague words like 'unreasonable' and 'probable' that have to be determined/explained in a later trial, which makes it much easier to skirt around the intended meaning of the amendment.

The meaning of those words is defined not in one trial but in 200 years of case law.

One could also argue that those very same words help make the constitution a living document that defines the spirit of the law far above simply the letter of the law.

Years of precedent in the form of case law do also weigh in, as others have mentioned.

if US judges took the same "living tree" approach to the constitution that Canadian judges do to theirs, I'd agree with you, but since they instead try and discover "original intent" I think it just unnecessarily introduces confusion over what, exactly, the original intent is/was, which allows for people, governments, and organizations to abuse both the spirit and the letter of it.

Frankly, anytime there is any interpretation by a human involved... wait, no, anytime there is a human involved, period, there is the opportunity for abuse of the system.

Just say'n is all...

entirely true, but some things are easier to abuse than others, just like how every computer is theoretically hackable, but some are easier to hack than others.

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