New Surveillance Technology Tests The Definition Of Search
from the privacy-much dept
As we discover more and more examples of high-tech surveillance devices, it’s increasingly clear that existing law as well as our notions of proper privacy boundaries are becoming inadequate. Because the law is concerned with things like what is required to do a lawful search, or what constitutes an unreasonable search, much of the challenge is actually what is meant by a search. A recent Reason magazine cover story looks at the way technology is making this a difficult question to answer. For example, it’s generally accepted that if you’re pulled over for running a stop sign, the police officer isn’t allowed to start rummaging through your trunk looking for your drugs. But, consider technology that allows someone to scan a door handle to see if there’s any drug residue on it. Some courts have ruled that the use of technology that’s only able to turn up illicit material does not constitute a search, and thus a use of such a scanner would not be in violation of rules against illegal search. Of course, just because the technology only turns up evidence of illegal activity does not mean it couldn’t be abused. If a law enforcement body decided to use the technology selectively against, say, a certain religious group or race, they could easily use it as a means of harassment. If the use of this technology isn’t classified as search, then the law doesn’t have much to say about how they can be used.
Interestingly, there are those with strong civil-liberties credentials who are very optimistic about the potential for these technologies. Their basic reasoning is that these new technologies can help perform investigations without the unintended side effect of having people’s personal lives exposed. So, it’s better to have a police officer scanning your car door’s handle for drug residue than to have them looking through your trunk, where they might not find drugs, but will find your stash of radical anarchist literature. David Brin, author of The Transparent Society sees another benefit to all this technology, which is basically that as we discover that all of us have committed some legal infractions at some point, society will move to lower the penalties of many activities. That may be optimistic; evidence of widespread illegality might just prompt more calls for stricter enforcement of the existing law. As Brin himself has put it there’s no getting rid of all this technology now that it’s here. The key is in establishing norms so that it’s not abused and used in a beneficial way to society.