Kylloing Me Softly in Pennsylvania

February 23, 2010

The Pennsylvania school board case got me thinking – what’s the real meaning of Kyllo’s general public use prong?

For those of you who aren’t law students, or who don’t follow Fourth Amendment precedent, Kyllo was a search case which invalidated warrantless police usage of a thermal scanner to surveil a house.  The test used in Kyllo had two prongs – the traditional reasonable expectation of privacy, and the newer “technology not in general public use” prong.  That latter remains somewhat under-explored, and this case may provide an interesting way to do so.  (A note: I do not believe the school district plans to argue that Kyllo does apply here, though I could be wrong.  This is purely thought-experiment.)  The operative language from Kyllo is actions “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ Silverman, 365 U.S., at 512, constitutes a search–at least where (as here) the technology in question is not in general public use.”

Now, if we’re to assume that clause has function – that it was not simply a back door left for the Court to use to avoid ridiculous results where all humans have x-ray glasses but police are banned from using them – the obvious conclusion is that a technology in general public use that reaches into the previously constitutionally protected zone of the home will not be a Fourth Amendment violation if used by the police.  In a society already well on the way to being a private surveillance society (not a public surveillance society – it’s the difference between Orwell’s Big Brother and the BBC’s), societal structures leading to broader and broader usage of privacy-invading devices are common.  The zone of privacy has already begun to contract in the public sphere – look at London’s Ring of Steel, the LMSI in NYC, or the cameras in Dubai that provided video evidence of the recent assassination of Hamas militant Mabhouh.  These operate to remove the presumption of privacy when in public, and the usage of widespread public surveillance cameras is spreading.  That’s the first step.

Going beyond that, as cameras become more and more miniaturized and habits like lifelogging (continual recording of one’s life and surroundings), pervasive use of social media, and the continued intermingling of the private life with the public become more socially accepted, the notion of pervasive audiovisual surveillance in even semi-private areas becomes reasonable and it becomes hard to argue that cameras are not in general public use.

Which brings us to the point: look at your computer.

Is there a camera on it?  I’m staring at the bezel of my 3.5 year old MacBook.  Two small dots and a lens – one dot for a microphone, one dot for the “on” light.  I suspect you’re doing the same, and seeing much the same thing – laptop cameras, and even cameras on desktops, are becoming almost ubiquitous.  People use them to record their surroundings and to send their images to others.  Under any plain reading of the words “general public use”, computer-attached cameras have entered that sphere.  While police may be barred from activating the cameras for other reasons (unauthorized access to a computer, perhaps, or other remedies in statute or the privacy torts), it is hard to argue that the Kyllo standard allows us to consider actions like that of the Pennsylvania School Board as violating the Fourth Amendment.

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