"I feel really troubled because it's an invasion of privacy and we have increasingly little privacy left," said Fred Cate, a senior fellow with the IU Center for Applied Cybersecurity Research. "It's also at a time when there's a national debate on 'do we trust law enforcement.'"
According to the article, the technology works like finely tuned motion detectors, using radio waves to zero in on movement as slight as human breathing from a distance of more than 50 feet. Cate said officers could tell users if there were people inside a building, how many people were there and their proximity to each other.
"They could tell if two people were engaged in intimate relations," he said.
Agencies like the FBI and U.S. Marshals have been using the radar systems for more than two years with little notice to the courts and no public disclosure on when or how they would be used, according to USA Today. That is problematic because the Supreme Court has clearly ruled that surveillance through the walls of a home requires a warrant, Cate said.
In Kyllo v. U.S. (2001), law enforcement officers were using thermal imaging technology to detect halogen lights that were being used to grow marijuana plants, Cate said. The court held specifically that "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."
Cate said the Fourth Amendment requires police to obtain a warrant before conducting a search of a space that's reasonably thought to be private. The home leads the list of reasonably private spaces, he said.
"There are a lot of areas of law where reasonable people differ," he said. "This is not one of them."
Cate said it's surprising the federal agencies using this technology and the lawyers advising them didn't feel it was necessary to obtain a warrant. He said getting a warrant isn't difficult, and judges almost never turn law enforcement down when they request one. However, warrants serve an important purpose.
"It's a system of checks and balances," he said. "Judges are our check on police."
Not obtaining a warrant could also jeopardize an investigation once it goes to trial. He suspects courts will block the use of evidence obtained from these devices when cases come up.
Cate believes, though, that these violations happen for the best of reasons. He said the job of law enforcement officers is to track down criminals and some regard certain legal requirements as roadblocks.
"It's a culture of getting the bad guy at all costs," he said. "That would be fine if we had a totalitarian government."
Now that the situation has been brought to light, Cate said he's not sure what might happen next. He said the simplest thing would be for the Attorney General to instruct the FBI and other agencies to obtain a warrant if they're going to use the technology.
Following that directive and others would be in the best interests of law enforcement, Cate said. There's a lot of information law enforcement agencies want access to, such as encryption technology, but they're not going to get it if they're not following the rules, he said.
"Now the question will be 'will they follow this law to build credibility for other types of information they want?'" he said.
©2015 Herald-Times (Bloomington, Ind.)
