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.

Somewhere deep inside we all believe that if we could just explain to someone else why we’re right, they’ll see the light and begin to believe as we do. When I run into a fundamentalist Christian (or, when they run into my godless Commie self) we both believe that the other person is thinking wrongly, that their conclusions are based on poor logic and if they’d just listen, they would see the light and begin having copious amounts of pre-marital sex (or tithing to some kind of horrifying Roberts/Falwell hybrid).

But they won’t. Listen as long as you want, they’ll never get around to buying your arguments. And thank (non-existent) God, I won’t get around to buying theirs either.

There’s a good reason for that. We’re not wired to think the way we think we are. We believe in our hearts that we are rational beings, that we derive our views via logic. But we don’t. A model proposed by Jonathan Haidt (an excellent explanation of which is contained in The Emotional Dog and Its Rational Tail – a title which summarizes the concept neatly) focuses on the idea that moral intuitions not only guide but in fact compose the basis of our cognitive judgments, which are post hoc rationalizations designed to match the intuitions our underlying moral frameworks give us. We think that we believe murder is wrong based on formal logic; in reality, our biology and neurology recoils from murdering others who we see as part-self. This is why othering processes are critical in all forms of violence – if you can see the other person as belonging to the same group as you, your neurological processes generate a profound biological basis for moral disgust at the action, which you will post-hoc rationalize to justify your decision not to commit the violent act.

In other words, all those judgments you make? It’s just your neurology generating rationalizations for the things you fundamentally believe. And trying to change someone’s fundamental beliefs? That’s hard. I won’t say impossible – everyone changes. But very, very hard.

The real problem requires that we go a little further into Haidt’s theory. When two people with contrary moral intuitions try to discuss something, their rationalization processes will examine the statements of the other person and reject them as counter to the fundamental moral logic they use to make this kind of judgment. It’s called the “bad faith problem” – we don’t see those arguing from alternate bases of judgment as incorrect, we see them as intentionally obtuse. They’re not just wrong, they’re willfully ignorant; they’re avoiding seeing the truth. You know. As we see it.

So let’s bring it back to the law. I am half of a lawyer (I have not yet figured out if I’m the law part or the yer; lately I suspect the latter more than the former), probably I should know something.

And here we relate back to a powerful theory of analysis of the law, critical legal studies, especially as developed by a fellow named Duncan Kennedy in a piece called The Critique of Rights. It’s a fairly complicated bit of theory and it uses lots of fancy words, but the core of the Critique is this – our Constitution does not define any specific outcomes when rights conflict with one another, and rights can always be construed to conflict. Once rights conflict, all of the trump cards that the term “right” holds in our minds – the notion of an insurpassable correctness – go out the window, because when it comes to a choice between freedom of speech and the separation of church and state, how do you decide which one is more correct? There’s no legal structure that allows you to assert the supremacy of one clause over another; as such, the choice of which right prevails is inherently political. Political, in this sense, meaning that it is a matter of policy, a choice made by a variety of metrics but one without any real notion of a “one true answer”. Pick your poison; they’re all equally valid.

So, if our cognitive judgments are fundamentally derived as post hoc rationalizations from intuitive moral structures, and our legal choices are inherently flexible and derived from our cognitive judgments, we’re left with normative legal arguments actually being conflicts between deep moral structures. The debate over whether abortion ought to be protected by law is a conflict between people who, deep down, see it as murder, and those who don’t. Any number of justifications exist to derive the legal or political position from that emotional intuition, but in the end, those arguments serve only to justify to ourselves; they’ll almost never convince someone of the opposite view from the one they hold.

Our normative debates are all too often pointless exercises. We’re yelling, not discussing, and we ought to treat it as such, or at least acknowledge that that is a strong component of what we do. Change will come slowly, generationally, as the new generation slowly shifts one way or another in the indoctrinations their moral structures receive.

I realize this is a somewhat pessimistic view. There are some rays of light – for one, these neural structures can change; people do experience conversions of thought that reflect a deeper internal change. It’s hard, and rarely will it occur when someone isn’t seeking some kind of change, but it is possible.

But in the end, it’s all just yelling. Relax and enjoy it.