New technologies challenge the established beliefs about privacy. With new technologies, no one can feel secured from the risks of privacy intrusions or unauthorized use. Even law enforcement agencies fail to comply with the fundamental legal requirements. Their actions often become an object of public and judicial scrutiny. Particularly problematic is the way law enforcement professionals use technologies during the pre-trial stages: the information obtained from illegal and unlawful searches often leads to legal disputes. The use of advanced technologies in crime-fighting strategies raises public concerns about citizens’ privacy rights and further transforms into a long-standing controversy over the balance of privacy and security in the technological world. The case of Kyllo v. United States reveals the hidden facets of technology use in crime investigation and confirms that law enforcement professionals should be more cautious when they use technologies to combat crime. Even the most sophisticated government and legal protections will not eliminate the existing technology-privacy controversies, as every new technology will challenge earlier principles of privacy, leading to new legal and moral debates.
Kyllo v. United States: Summary
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The debate over the use of technologies and their impacts on privacy continues to persist. The recent case of Kyllo v. United States suggests that the use of new technologies remains one of the major problems in the relations between law enforcement professionals and the public (Colbridge). In his article, Thomas Colbridge discusses the issues and implications of Kyllo v. United States for the development of law enforcement strategies. In Kyllo v. United States, in the middle of the night, law enforcement professionals used thermal imaging technologies to explain the abnormally high use of utility in Kyllo’s house (Colbridge). The results revealed abnormally high amounts of heat in Kyllo’s house, which led the law enforcement professionals to believe he was growing marijuana there (Colbridge). When the search warrant was obtained, law enforcement professionals found marijuana plants, drug paraphernalia, and weapons in Kyllo’s house (Colbridge). However, Kyllo decided to suppress evidence and prove the use of thermal imaging in his house was illegal.
The Supreme Court of the United States decided that the use of thermal imaging in law enforcement procedures had been a search under the Fourth Amendment (Colbridge). Colbridge writes that the decision will have far-reaching implications for the entire system of law enforcement. On the one hand, the use of technologies to combat crime has been limited. On the other hand, the decision provides guidance to all law enforcement professionals who work with advanced technologies. Colbridge lists the factors courts usually evaluate, when judging the appropriateness of advanced technologies: target, type of information gathered, availability of the device to the common public, reason why the device is used, and the way the device is actually used. The case of Kyllo v. United States deals with thermal-imaging technologies but obligates law enforcement professionals to check and evaluate each and every device, before it is used (Colbridge).
Privacy vs. crime: Responding to the Issue
Based on what Colbridge writes in his article, technologies create privacy tensions that cannot be resolved; most probably, we will have to reconcile with the loss of privacy for the sake of technologies, as every new technology will necessarily lead to new legal and moral debates. The issue of technologies versus privacy can be considered from three different perspectives: a legal perspective, a moral perspective, and a future development perspective.
The Fourth Amendment of the U.S. Constitution is, probably, the most frequently cited legal document in technologies-versus-privacy debates. Technologies have become an essential ingredient of our daily routines, but how well do they fulfill their functions, and are these functions legal? The case of Kyllo v. United States suggests that many technologies themselves or their use can be illegal from the start, and the main problem is not that these technologies result in serious civil rights violations. The basic problem is that the information provided by and obtained through these technologies is not always reliable. In Kyllo v. United States, the abnormal amount of heat coming from Kyllo’s house was enough to justify the need for a search warrant (Colbridge). The law enforcement professionals working with Kyllo concluded that the abnormal amount of heat within Kyllo’s house confirmed he was growing marijuana there. The logic of these conclusions is questionable, but the fact that the heat in Kyllo’s house could be anything but marijuana cannot be denied. It is the same as using human gaits to predict behavioral intentions, simply because human gaits can be potentially useful in predicting behavioral intentions and suspicious behaviors (Anonymous). Law enforcement professionals cannot and should not arrest a person simply on the basis of his/her gaits. In the same token, law enforcement professionals cannot break into a citizen’s house with a thermal imaging device. Even if there was no physical intrusion, the use of thermal imaging devices crossed the boundaries of reasonable precaution. The law enforcement professionals entered the private territory without any permission, even if they had reasonable suspicion that the suspect was growing marijuana in his house.
The moral side of the debate is even more problematic. New technologies erase the boundaries of human relationships and turn humans into objects of surveillance. This “impersonalization” of humans has become a distinguishing feature of today’s commercial and legal cultures. Just take a look at the way a flourishing young white woman treats a black or Hispanic checkout clerk: she would not ever stop chatting on her phone throughout the transaction (Franzen). Certainly, she would not expect the checkout clerk to be smiling or interacting with her (Franzen). The job of most checkout clerks is repetitive and low-paid, and it is too liberal to believe they would be willing to interact with customers (Franzen). However, this situation does not absolve the young lady from acknowledging the existence of the checkout clerk; she is a human, too (Franzen).
The situation with the law enforcement professionals using thermal imaging devices is virtually the same. Kyllo has his rights and obligations, and he has a reasonable expectation of privacy, when he is at home. Therefore, he would not expect anybody collecting the intimate details of his private life at home or monitoring his private activities in private areas (Colbridge). Undoubtedly, from both the moral and ethical standpoints, the law enforcement professionals had to obtain Kyllo’s consent to use the device. However, obtaining such consent at night was not possible (Colbridge). Moreover, it is naïve to believe that Kyllo would have voluntarily agreed to be monitored, knowing that he had illegal substances at home. Thus, to some extent, professionals’ laments regarding the use of advanced technologies to deter crime can be justified. Yet, again, there should be a more ‘humane’ approach to law enforcement procedures, especially when technologies are used to detect, deter, or investigate crimes. The fact of committing a crime does not deprive the criminal of his/her fundamental rights, including the right to privacy, and assessing the functions and implications of various technologies should become one of the primary responsibilities in law enforcement.
New technologies constantly emerge, and the tension between the use of technologies and privacy will hardly be resolved. New technologies challenge the established beliefs about privacy. Laws do have the potential to prevent the illegitimate use of technology and privacy intrusions. However, their limitations are too numerous to ensure effective implementation and application. More importantly, “technological advances are quickly rendering many of these laws useless” (Price). Most probably, we will have to sacrifice our privacy for the sake of the technological progress, as even with the presence of the most effective laws, every new technology will necessarily raise new legal and moral issues. This, however, does not mean that the fundamental legal and moral principles can be disregarded. The best we can do is to follow the basic legal and moral requirements to the extent where they do not compromise the use of technologies, and simply get used to the situations where the use of technologies is questionable. Meanwhile, laws and regulations should be regularly reviewed, to address the latest developments in the field of technologies and reduce the risks of ethical and legal compromises.
The rapid advancement of information technologies raises numerous questions regarding their use, especially in law enforcement. The case of Kyllo v. United States suggests that law enforcement professionals must be particularly cautious with technologies. Evaluating technologies and understanding their legal and ethical implications must become one of the top priorities in law enforcement. However, even the most sophisticated government and legal protections will not eliminate the existing technology-privacy controversies, as every new technology will challenge earlier principles of privacy, leading to new legal and moral debates. Laws cannot catch up with the pace of technological revolutions. Every new technology raises new privacy and security issues. Most probably, the society will have to give up its hopes to resolve these controversies in the nearest future. Nevertheless, privacy laws should be regularly updated to reflect the latest developments in the field of technology and reduce the risks of legal and moral compromises.
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