Reasonable Search or High-Tech Peeping Tom?

Lecture examines technology’s impact on expectations of privacy

Russell L. Weaver, a law professor at the University of Louisville Louis D. Brandeis School of Law, spoke during the 2009-10 James Otis Lecture held Sept. 23 at the law school. He focused on the current legal test of a person’s reasonable expectation of privacy and how it is inadequate in terms of technology.

“With the revolution of technology in the past 20 years, what should people expect to be a reasonable expectation of privacy?” he asked. “The current test takes us so far, and we need to think about protecting privacy in the current rules.”

The Fourth Amendment—a constitutional safeguard that protects against unreasonable searches and seizures—and its protections were expanded by the 1967 U.S. Supreme Court decision in Katz v. United States, which established the “reasonable expectation of privacy” test. This test states that a person has a reasonable expectation of privacy in places such as his or her residence and at certain public places like a public restroom.

But with technological advances and the development of new devices like thermal-imaging systems, Weaver said, clear guidelines need to be established to determine what constitutes a person’s reasonable expectation of privacy.

As an example, Weaver examined the 2001 case Kyllo v. United States. In this U.S. Supreme Court case, an agent from the U.S. Department of Interior used a thermal-imaging device to scan the residence of Danny Kyllo.

Agents discovered marijuana, and Kyllo was indicted on a federal drug charge. An appellate court affirmed a lower-court’s judgment and concluded that Kyllo did not try to conceal the heat being emitted from his home; therefore he had shown “no subjective expectation of privacy.”

However, the U.S. Supreme Court in a 5-4 opinion ruled that the thermal-imaging information obtained was a search because the government instrument—which was not used by the general public—allowed the agent to “explore details of the home that would not have been known without physical intrusion.” Subsequently, the search was “unreasonable without a warrant.”

Weaver said that in this particular case, the Court put an emphasis on the home and the search of the home.

“The Court said that the home was a special place, and they would be more protective of the home,” he said. “But, when we think about new technology, many questions arise because today there are seeing and hearing devices that can detect something through walls. Technology is changing, and it’s becoming where courts will have to find new standards for this evolution of technology.”

Held in conjunction with the National Judicial College fall seminar on comprehensive search and seizure training for trial judges and the National Center for Justice and the Rule of Law at the UM law school, the annual lecture series is named in honor of Fourth Amendment advocate James Otis.

District Judge Nancy Guthrie from Jackson, Wyo., said the lecture and training seminar enlightened her on the Fourth Amendment and its protections.

“I have been attending these conferences for 15 years, and this is probably one of the finest trainings I have received as a judge in 15 years,” Guthrie said. “Professor Weaver was a recap of what we have been studying since the start of the conference, and we truly have had the experts on the Fourth Amendment.”

UM law student Macy Hanson said the topic of the Otis Lecture is vitally important and is sadly underrepresented in most discussions about law and in the media.

“As a law student interested in being a criminal defense attorney specializing in people accused of drug-related crimes, the perspective on how new technology can—and most likely will—erode privacy rights is invaluable to how I think about the law and will practice the law,” Hanson said.

—Sarah Cure