According to The Wall Street Journal, a three-month-old decision by DNI Michael McConnell has dramatically expanded intelligence agencies’ access to domestic surveillance images from spy satellites. There are a couple of interesting legal questions here, as the WSJ article notes. The first is whether routine domestic intelligence use of satellites developed by the military runs afoul of the Posse Comitatus Act. The other is how and whether the Fourth Amendment limits satellite surveillance. The courts have, to date, not regarded aerial observation by planes as a “search” for Fourth Amendment purposes, under the plain view doctrine. The sensible intuition here is that you have no protected privacy interest in what can be observed without entering your property: If you’re foolish enough to put your marijuana crop in front of an open window—or in a field that can be spotted by someone flying overhead—you can’t complain if the police notice it. But the analogy to casual observation begins to seem awfully strained when we consider the potential of satellite imaging to create a perpetual record of whole regions of the country, allowing anyone’s comings and goings to be tracked. This may, then, present a problem of what Lawrence Lessig has called “Fidelity in Translation”: Constitutional rules create a balance between conflicting interests—citizens’ need for privacy and law enforcement’s need to gather information—but as technology changes, the application of the same rule may produce a very different balance of interests. The question, then, is how, whether, and when fidelity to the Constitution may mean discarding the original rule in order to preserve the original balance.
Update: Nick Beaudrot, writing at Ezra’s, suggests the that ruling in Kyllo may provide precedent for limits on high-tech searches. I’m a bit less sanguine. (Incidentally, a very short history of 20th century search-tech ruling I wrote a sidebar for a longer Reason feature may be helpful here.) The Kyllo ruling concerned activity inside a private residence, and suggested that technology could not be used (without a warrant) to non-intrusively gather information that could otherwise only be obtained by physical intrusion into the home. And this may indeed bar the use of, say, infrared imaging tech on spy satellites. But on my reading, anything that might, in principle, have been observed by a human being on the ground outside the four walls of the specially-protected space of the home is still fair game. So there’s still little reason to think that the courts are prepared to recognize that permanence and searchability make a difference make a difference in the status of observations in the ordinary visual spectrum.
Update II: Per the comments, I should clarify I’m not saying current tech can literally produce a high-res, 24/7 movie of the whole country. But taking that as one extreme and casual observation by a cop on foot as the other, it’s clear that there’s a gradient of permanence and ubiquity along which such “plain view” surveillance can fall. At some point, there’s a real and qualitative change in the kind of privacy we enjoy.
4 responses so far ↓
1 Nick // Aug 17, 2007 at 9:10 am
There was an interesting discussion on NPR about spy satellites and their capabilities. I can’t seem to play it, but as I recall, spy satellites don’t have many of the capabilities that we would think they do.
They don’t create a “perpetual record” as much as they do periodic photographs with huge gaps of time in them; the ‘lites are not geostationary (which would be impossible at our latitudes) or even geosynchronous.
They create fairly low-rez images that are black-and-white, and thus hard to interpret. I believe the implication was that it would be very difficult to identify someone from a spy photo.
Also, getting a photo of a specific spot takes time and effort to set up. One would have to find the right satellite, wait for its orbit to swing around, and then grab the photo as it passes. Luckily, they see through cloud cover, or they’d be next to useless.
That’s not to say that the sort of satellite cover you’re imagining is not a potential future technology that we should consider the implications of, but just as new tech makes old rulings mean different things, the limitations of current tech have a bearing on the extent of any violations that this ruling creates.
Of course, I’m assuming that Pike is being truthful. He’s obviously got some incentive to play down the capabilities of these satellites in the current clime.
2 swanlaker // Aug 17, 2007 at 1:37 pm
The day will come.
Assuming that image resolution, data capacity, and software ability increase each year, sooner or later 24/7 tracking will be reality.
The question is: Then What?
3 Nick // Aug 17, 2007 at 1:47 pm
Per your update: That’s definitely a fair point. What I’m saying about satellites qua satellites is just that due to their limitations they’re actually, at least per Pike, less intrusive than, say, surveillance by aircraft.
Where along the gradient proposed does the quality of freedom suffer overmuch? I would say prior to the line we’ve already drawn, personally. I’m not a fan of the ruling on aerial search as non-search.
4 fishbane // Aug 20, 2007 at 7:30 pm
I’ve been thinking about this sort of slippery slope for a long time. Not that that gives me any sort of authority…
My view is that a reasonable 4th ‘plain view’ standpoint should ride on the ‘plain’ part of the statement. That is, when I, for a reasonable amount of money, can launch my own satellites to look wherever I want, then great, the cops can, too. I see this as analogous to freedom of speech – I can print/blog/email/whatever at my own cost, and while The Powers That Be can disagree, at their (erm, my) expense, they can’t stop me, modulo certain extreme circumstances.
There are problems with unregulated space automata, of course, much like there would be with unregulated air flight. Ideally, let the market sort it out. Less ideally, regulate it top-down. But pretend that looking in my window from space is not a violation of search while denying the same right to me? That’s not legal reasoning. That’s a rubber stamp in a robe.