Spawned from http://boards.straightdope.com/sdmb/showpost.php?p=5505817&postcount=32 .
To Recap:
Hmm. So you’d approve of the use of laser-microphones on the same basis? (My understanding of the technology is that it projects a beam onto a window of a room and thusly measures the vibrations of the beam, which it translates into sound.)
What about phone-taps? E-mail monitoring?
Sorry for the hijack, but this POV intrigues me.
No, laser microphones cross the line. They project light from your device onto my window without my permission. If you could point a device at my window that measured the vibrations without hitting it with anything, that’d be fine, in my book. Phone taps are an active intrusion, and should require a warrant. But I wouldn’t object to monitoring of cordless analog phones; they broadcast the conversation unencoded for anyone with a receiver to hear.
Well, technically, your window is vibrating the air outside your house; and a laser hitting your window is just the easiest way of “Feeling” those vibrations. But okay, you don’t approve of the touch of a beam of light. You say you’d be fine if the technology improved to allow measurement in a passive way.
You seem to believe in a Constitutional Right to Privacy, at least in a sense. Is that accurate?
If it is, then how much can one reasonably expect a citizen, who wants the proceedings of his home to remain private, to spend on electronic countermeasures to prevent the government from “passively” snooping on him? Doesn’t the allowance of advanced passive sensors place an undue burden on the right to privacy? If I don’t want people peeking in my windows, I can pull the curtains. That’s inexpensive, easy to do, and not burdensome. If I want to hide myself from these infrared scanners, what’s to do? $10,000 worth of insulation?
Why must I pay fantastic sums of money to protect my privacy?
No. I believe in what I can read. I believe in a constitutional right to be free from unreasonable searches, because that’s what the Constitution says. I don’t believe there is a general constitutional right to privacy.
Ah, and here’s our disconnect.
Would you support an explicit ‘Right to Privacy’ Amendment to the Constitution?
I am not allowed to collect garbage in my house. Eventually it would become a health hazard. And yet neither am I allowed to expect any privacy from inspecting my trash, because I am “putting it out there.” Even if I go so far as to shred documents I don’t want public, a sufficiently motivated person could, in principle, reassemble them.
Am I the only one that finds that strange?
And I don’t mean only to protect documents. We’ve also gone over the DNA thing before, which I have come around on (re: the right to gather DNA evidence from trash, which I thought was unreasonable but changed my mind on given evidence about the availability of DNA testing). But I am, as far as I can tell, forbidden from exercizing any attempt at privacy in such cases. Simply put, I can’t collect garbage in my house, as mentioned, yet neither can I expect any privacy in my refuse, as we all seem to agree. But being compelled to “put it out there” would be like being compelled to leave a window open so that passers by could listen in on conversations in order to aid investigative work. Seems… fishy to me.
The “special equipment” caveat is the one I sort of snag on (and O’ Connor, too, IIRC). The general public isn’t really privy to helicopters and FLIR technology.
How far would you be willing to go with such a right to privacy? Should the government be forbidden from recording all eminations from you home? Should they be allowed to aboserver but not record them? Should they not be allowed to look in the direction of your home unless they have probable cause?
I think you could make the case that infared imaging of a home is an unreasonable search. I’m not sure it is, but you could make a good argument. IANAL but I think unreasonable does not refer to the difficulty imposed on the government. That is, just because there is an easy technological method for gathering the information, does not mean the search is unreasonable.
Yes. Yes you are. 
Aren’t you allowed to dispose of your garbage in some other way? Couldn’t you take it to an incinerator yourself? I’m not exactly sure you are required to put it on the curb, are you?
I could take it to people who operate incinerators. They, of course, have the same access to it that garbage collectors do.
No, I don’t think so. If you contract with the incinerator operators, they have a feduciary responsibility to respect your privacy. You give information to doctors and lawyers all the time which you do not “put out there”.
Even short of an incinerator ethic, the government could not simply sieze the garbage held by the incinerator company because it would still be on private property. It is even possible (I’m not up on my patriot act) the if they had a search warrant to search your car, but before they could server the warrant you dropped several bags of garbage off at the incinerator, they could not use that warrant to grab that garbage.
Hmm. I’ll have to check out the regs and availability of such things before I comment further.
Is there a way a person could prevent a thermal image from reading who’s where in the house, by reasonable means? Without putting three-foot-thick concrete walls around me, can I stop someone doing a thermal scan from seeing that which, before the technology was invented, would have required a search warrant?
To me, that’s the salient question.
Depending on the wording, sure. I think privacy’s a valuable thing, and I don’t t want the government mucking around in my business.
But I don’t want to get there by creating phantom rights.
All this is true even with the phantom right to privacy in place, I might add. Perhaps a real amendment, grounded in written words instead of emanations, penumbras, and vapors, might change that.
See, now, I can at least understand that Bricker doesn’t think the thermal scan is unconstitutional, based on his literal reading of the Constitution.
Of course, that opens other cans of worms - laws against flag-burning - are they okay? They’re not literally “speech”…
But that’s another aside.
The burning question in my mind is - do you think the government should have the power to thermal-image your home and observe the doings therein, Bricker? Without a warrant, I mean.
Some people’s imprecise wording aside, I think there’s a good question[sup]1[/sup] here Bricker. It’s one of reasonableness and how it changes with technology. Prior to the airplane, people had a “reasonable” expectation that their marijuana crops inside their fenced land would not be seen. Now that expectation doesn’t exist – it’s not an “unreasonable” search to commission an aircraft, at whatever expense to the State, to fly over someone’s land and take a (passive) look. Prior to thermal imaging technology, a wall was sufficient for a person to expect privacy. Now, in your read, it ought not be so.
It passivity itself sufficient to make a search “reasonable” in the sense that whatever is being intercepted is in “plain sight” by some definition (assuming no encryption of course). Or does there come a point where the massive resources available to the State to acquire unconventional “plain sight” signals compared to the limited resources to an individual citizen to foil the device make the search unreasonable, even if passive? Every time I hit a key on my keyboard, a tiny EM signature is produced. The NSA was at one time rumored to have trucks that could pick that up. If that were true, would the State’s ability to buy a $40 MM (made-up number) necessitate my buying an EM signal scrambler?
[sup]1[/sup]: “Good question” being defined, as usual, as "one to which I don’t have the answer.
Exactly. Another relevant issue is that you’re in your own home. Is your expectation that what you’re doing is not in plain sight reasonable inside the walls of your home? How about in a hotel room? What about in an office building?
Clearly, the use of cameras everywhere means that society has deemed that you don’t have that reasonable expectation in most public buildings, but I think being inside your own private residence is still a place where you shouldn’t be seen with x-ray specs, without a warrant.
No, I’d support legislation limiting the power of the government to do that.
Ugh. Your answer indicates that I worded my question poorly. In the constitution, the “reasonableness” is not an expectation of the search but a duty of the searcher. They’re definitely interlinked for purposes of thinking about the exercise, but before a strict contructionalist court the question would not be what the object of a search may reasonably expect, but what the conductors of a search may reasonably do. So the question is, is passivity sufficient to make a search unreasonable or might a strict constructionalist court find that, for example, spending $40 MM on a piece of equipment that gets used 10 times a year is “unreasonable” because it so tilts the playing field away from the individual toward the State?
Your answer is meant to apply to bup’s post, not Bricker’s