Blindsided by the light

Could it possibly be safer to grow marijuana in the drug-war-crazed USA than it is in Canada? A recent decision by the Supreme Court of Canada may, strangely enough, make the answer ‘yes.’ That’s because Canada’s highest court gave police the power to use, without a warrant, thermal imaging technology to scan people’s homes.
A heated issue

The case began in 1999, when the Royal Canadian Mounted Police received two tips. Once, from an unknown source, was that “Ken” was a marijuana grower and seller. The other, from a “proven” source, suggested that a major drug dealer was buying from Ken. Neither tip directly implicated Walter Tessling, yet police sought information from Ontario Hydro about Tessling’s electrical usage, which was turned out to be normal. Despite this, police then used FLIR (forward looking infrared technology) to scan Tessling’s home. FLIR detected unusual heat sources so police obtained a warrant, entered the home and busted Tessling’s grow-op.

Tessling argued that the use of FLIR violated his rights when they detected heat radiating from inside his house. And, to search a home, you usually need a warrant ? which police didn’t have when they used the infrared. Tessling claimed a person’s house should be private, and that sense-enhancing technology allowed police too much access to the intimate details of your life. Plus, the US Supreme Court had recently decided that using similar spy technology was a search ? and Canada couldn’t have worse policy than the US, could it?

The American Supreme Court, in an opinion penned by arch-conservative Antonin Scalia in 1991, basically said that a person’s home really was their castle ? deserving of the highest privacy protection. That year, Danny Kyllo was a suspected marijuana grower, and police had used infrared technology to scan his house. Based in part on the imaging, police obtained a warrant and busted Kyllo’s 100-plant grow.

Kyllo argued that police needed a warrant before using the infrared. Surprisingly, Justice Scalia and the majority of the US Supreme Court agreed. In the US, the criteria defining a search are based on privacy considerations. If you have a “reasonable expectation of privacy” then police would need consent, a warrant, or some emergency situation before making a search.

The government argued that thermal imaging was not a search because it employed relatively crude technology. The devices only showed hot spots “off-the-wall” but were not capable of “through-the-wall” observation. Scalia shot this down, saying that allowing thermal imaging now would “leave the homeowner at the mercy of advancing technology.” He pointed out that even crude images reveal intimate details, such as “at what hour each night the lady of the house takes her daily sauna and bath.”

Prohibiting privacy

Unfortunately, despite the Kyllo decision and its logical approach, the Supreme Court of Canada decided that using FLIR to peek into Walter Tessling’s house was not a search and not an invasion of his privacy. Canadian search law is also based on privacy; whether a person has a subjective expectation, and whether that expectation is objectively reasonable. For example, you could subjectively believe that you’re entitled to privacy while sunbathing nude in your front yard, but that belief wouldn’t be reasonable.

And, according to the Court, it isn’t reasonable to expect that heat emissions from your home should be private. The basis for the unanimous decision was that the 1999 technology at issue in the case was too crude ? it just did not show police things that are entitled to privacy protection. It seems that the Canadian Supremes were not as concerned about the lady of the house bathing as Justice Scalia in the US seemed to be.

The Canadian opinion leaves room for doubt about updated technology. Police and the public know that, in the US, search law is not based on how good the newest gadgets are. In Canada, though, everyone is left to wonder whether current technology crosses the line.

The FLIR used to bust Kyllo and Tessling could only see heat escaping from a home. In many ways, that technology is crude. It can also be thwarted by clever use of insulation and proper venting. It stands to reason, then, that police are going to want newer, better and more intrusive tools to use against growers. That technology, in use today by the military and some law enforcement organizations, is called millimeter wave.

Smile, you’re on camera

This new equipment uses non-ionizing radiation (basically, microwaves) to literally strip away walls, or even clothing. The devices create a three dimensional image that, according to one manufacturer, is “able to ‘see through’ most wall materials. Such systems enable users to view activities from one or two rooms away, or from the outside of a building into its interior.” The devices “can be made extremely sensitive to movement, even to the level of detecting heartbeats.” In other words, police can stand outside your home and watch your movements within.

Under current Canadian law, the most intimate details of your private life can be laid bare for agents of the government, with no requirement that they have a warrant ? or even any real suspicions ? before they begin spying. But until a victim of this intrusive technology wins a new court case, police can go right on doing it.

Of course, there are a lot of reasons why growing marijuana in the US is much riskier than in Canada, not least of which is the repressive US sentencing and the excessively harsh penalties given to growers. Also, police often have enough information (usually through tips ? so be very careful who you trust) to obtain a warrant to use FLIR.

But, in this era of fast-developing technology, Americans can at least derive some comfort from the fact that their Supreme Court understood that police will always seek to push the boundaries, and reacted accordingly by drawing a clear line about what is, and is not, a permissible intrusion into personal privacy.

Canadians, on the other hand, are left wondering whether their police are watching them, perhaps even right through their walls.

? FLIR in the media: