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.

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Comments on “New Surveillance Technology Tests The Definition Of Search”

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The infamous Joe says:

To search or not to search.

It seems to me that a device that scans for drug residue on the handle would be circumstantial evidence, it only proves that someone who handled drugs handled your car handle– which is pretty much open to anyone who passes by while it’s parked, not that *you* handled drugs.

That being said, it would probably be enough to allow a police officer to search your car– but I can’t say that it constitutes a search any more than looking into the car does.

The fact that it could be misused for harrassment– well, go to any airport and see who gets “randomly” searched and tell me that it doesn’t already happen.

Overcast says:

But scanning a door handle still doesn’t prove anything.

Actually, let’s take a ‘real’ case into consideration.

When I was younger and lacked many morals, well I also smoked pot quite regularly.

Once, a friend and myself decided to go see what ‘free’ cassette tapes we could find lying in unlocked cars. Sadly enough, I bet; in that neighborhood, about 60-70% of car doors were unlocked.

But in either case, we were trying them.

I’m sure I would have had some residue from pot on my fingers, so if I tried your door – even if it was locked, I may have gotten a bit of residue on the door handle.

Now lets say the next day you get pulled over for a taillight out and the cop ‘scans’ your door handle – what might he find?

Could even be parked in a shopping store’s lot and some junky might try the handle of your car to see if they can find cash or something. Locked or no, he may well leave a bit of residue on the handle. Even though he never ‘broke’ into your car, as he was just checking for easy targets.

Don’t say that can’t happen – I well know it can, lol.

I’m not anything like that anymore, I grew up – but still; again, that would prove nothing.

Anonymous Coward says:

Re: Another Outcome

at which point finding residue of disinfectant would be considered evidence enough to allow a more detailed search…

after all you *must* be hiding something…

likewise if you are ‘not guilty’ that just means you hide your guilt well, and thus must be guilty.

you can see where that could end up, the only plus point is things would get so bogged down eventually some balance would be restored, but in the interim it could get nasty

Dan says:

I think the biggest concern with this would be how often a positive result is found. A recent check in Dublin found that 100% of Euro notes tested contained traces of cocaine:

So it seems it would be very easy to get a positive result from these door handle scans, depending on how sensitive the scanners are. It could be then therefore used to basically legitimize any search.

For example if there is a house that the police want to search for some reason unrelated to drugs but couldn’t get enough evidence to permit a search. Just whip the old scanner out, check the doorknob for a positive and in you go.

Overcast says:

Yeah, you’re 100% right security. Those that do, in fact; have something to worry about will take precaution to cover their tracks, while the unwitting fall victim to crap like this.

Or simply, use a napkin in my pocket to open the door handle after my nightly crack binge… lol, it really wouldn’t be any harder than that.

Heck, the way some of the drug users are, just for kicks; they might stick their fingers in some old resin and get the ends coated real well, walk around and get it on people’s door handles – if for nothing else, just to give the ‘man’ some crap.

Good point too Dan – and that may be the real reasoning behind it too.

drjones says:

Police dont need more ways to get probable cause

In most places, AFAIK, it doesnt take much for a cop to do an on the spot search of your vehicle. They dont really need any more reasons.

They can already pretty much conduct a search for any reaon. Maybe they thought your eyes were red (you must be high!). Its all pretty subjective, and is totally up to the police officer. They can justify pretty much anything, when it comes to searching a vehicle.

Really dont like the idea of giving them any more ways to come up with shaky “probable cause”.

Phlatus the Elder says:

Straw man attacked on TechDirt

Residue on the steering wheel may be interesting, but on the exterior door handle? Absolutely useless as evidence because of reasonable doubts galore. This is why the cop rolls her eyes when someone who watched CSI last night insists that she dust the exterior of their car for fingerprints when they discover all their CDs (or old cassette tapes) missing the next morning – it’s on the outside of the damn car where any passer-by could have touched it.

While Joe went off on a tangent with a bogus application of a gadget, he still brings up a valid point. Technology is shifting our reasonable expectation of privacy and, thus, the definition of a search. Do something interesting today and you can assume someone will photograph it with a cell phone camera.

(On privacy in general; Every time I’ve gotten myself all lathered up about what the government MIGHT do, it’s been private business that’s done it to me, starting with insurance companies.)

Trvth Jvstice says:

Are You Guilty?

If your car handle was contaminated by a careless or malicious drug user, and your vehicle is drug free, then you have nothing to worry about. But- If you have illegal drugs or any other illegal item in your car and you get caught because someone else touched your door handle, then you deserve whatever you get.

I can see a tool like this being misused though. I can’t see it ever allowed by anyone other than the dea or the atf.

misanthropic humanist says:

law enforcement technology

Much maligned but insightful thinker Ayn Rand understood this well. Below a certain point laws are not designed to regulate social ills, they are made to be broken. Just as you cannot con an honest man, you cannot govern honest men through fear. You must make everyone a criminal and then selectively apply those laws as needed.

As #5 Security says: “So, the only ones left to be caught will be those who know but do nothing.”

Or the means to defend themselves. Look at the security industry. What product sells as well as surveillance equipment? Counter-surveillance equipment. If you are in the business of producing an X-detector you have the best technical know-how to produce devices which defeat X-detectors. It would be foolish not to play both sides of the market.

With the sole exception of his radio, which is a cops best friend, real policemen hate technology for the mostpart. Policing is 60% footwork, 20% psychology, 10% gut instinct and 10% brute force. People get police mixed up with detectives and spooks (who are a more palid and thoughtful breed). The latter work on the foundation of the former, the eyes and ears on the ground. A good cop doesn’t need a fancy gadget to tell him something is wrong.

Very sensitive molecular detectors are pretty much useless in crime prevention. As Dan says, anybody who has handled a bank note has cocaine residue on them and there are over 40 household chemicals that will in some combination indicate positive for explosives. If a serious criminal is shipping a large quantity of either they will use the same technology to make sure it is undetectable, and once again blind faith in technology will divert the now complacent cop into thinking everything is okay (even though the suspect is sweating like a pig on a spit and fidgeting like a bag of rabbits).

Another problem as I see it or Americans is that civil liberties work against practicality here. In Europe, and particularly Holland and France the police will ignore small quantities of drugs. But the police have more useful power. Reasonable suspicion alone is enough to warrant a search, and what is more you can refuse (of course you will probably be arrested). Sometimes the cops will even hand your drugs back to you. In the USA there is a polarisation of extreme authoratarianism and selfish libertarianism that forces every situation into stark relief and ultimately towards confrontation.
It’s dehumanising for a cop to have to keep one hand on a gun, he is not supposed to be a soldier.

This is very apparent by the difference in the word “cooperation”. It has entirely different semantics in the USA than in Europe. In America “cooperation” equates to compliance and capitulation. The cop is forced into the role of bully and the suspect is expected to toady up to the fragile authoratarian ego. In Europe the cop is treated with more default repect (probably because he is unarmed), and “cooperation” is real, an open demonstration of lack of guilt which speeds up the process for both parties.

More technology in law enforcement just further dehumanises what is an essentially human job, and drives a wedge between society and those whos responsibility it is to serve and protect.

chris (profile) says:

intelligence 101

with every new advance in intelligence technology comes a greater public misunderstanding of how intelligence works.

there are two parts to gathering intelligence: collection (gathering data) and analysis (making use of the data collected). there are plenty of instances where data has been collected but not analyzed in a timely manner.

collection is way easier than analysis. processing requires more human intervention and computing power.

a technological advance in collection just means that there will be more data that needs to be analyzed. the tings that we should all worry aobut are advances in analysis, since that is what will ultimately threaten our privacy.

with the right equipment, scanning every car on a major highway for drugs is relatiely trivial, but conducting searches on each car that registered positive in order to locate those drugs is another story all together.

depending on the sensitivity of the scanner, you could drop a small amount of cocaine in a spray bottle full of water and spritz all of the car doors in a walmart parking lot, thereby making the collection system produce many false positives.

if you were brave, you could spritz cop cars at the scene of a nasty accident as well.

the same can be done with RFID. with enough useless RFID chips out in the wild, tracking legitimate ones becomes very difficult.

misanthropic humanist says:

scope of evidence

“a technological advance in collection just means that there will be more data that needs to be analyzed.”

Good point Chris. What is interesting is the timeframe for analysis. If you are investigating a murder that took place 20 years ago then there’s no rush. If you are investigating a threat that hasn’t happened yet you want to know asap. Problem is that the murder is an established crime, while the threat is speculative. Given the proven poverty of intelligence (which has obviously sharply declined since we started torturing people) how do you weight your resources?

We are starting to see a lot of old cases solved where evidence was kept and new analysis is applied, particularly DNA.

While that’s a good thing, it raises new questions for standards of evidence and the scope of culpability. If you are suddenly accused of a crime that happened 10 years ago how are you going to defend yourself? Can you remember where you were on the night of Jan 10th 1996?

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