Big Bill Of Rights news today, as the Illinois Police and the Supreme Court pile another rock on the chest of the Fourth Amendment, hoping this time to crush it to death. (Metaphor courtesy of Bryan Gates at I respectfully dissent.)
The court’s ruling in Illinois v. Caballes says that police can use a drug dog to search a vehicle without any individualized suspicion. The scariest part of the ruling is the reasoning: Since drug dogs only detect drugs, the person’s privacy is only violated to the extent that they have drugs. But because drugs are illegal, there is no right to privacy for possessing them.
That is, because the police have developed a technology for searching (trained dog) that only finds illegal stuff and does not infringe on legally private matters, there is no violation of privacy for police to do the search without warrant or cause.
Orin Kerr worries about this:
Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain “non private” information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it’s no longer so clear.
I think the problem may be worse than Kerr’s example implies. If computer searches pass Caballes, it’s not because the search is of a computer, but because the search is by a computer. I think any computer-mediated search technology might pass as long as the computer hides the target’s private information and only passes the illegal stuff to the operator. (After all, the drug dog probably smells a lot of stuff it isn’t barking about.)
How about taking millimeter-wave radar images of pedestrians and letting a computer process the images to search for weapons? Such technology is far from perfect, but it arguably only has to be as accurate as a police dog and handler. Computer voice recognition of criminal speech is more difficult, but when it becomes possible, this ruling will leave the door open for it.
That slippery slope worries me too. Once we allow searches that that depend for their legality on their accuracy, just how accurate will we require them to be? Will it depend on what we’re searching for? I’m not looking forward to any Fourth Amendment balancing act.