New prying technology winds up in court

Public officials react to wider surveillance with new legislation

Nicodemo Scarfo Jr. thought he had the ultimate snoop-stopper. When police raided his home two years ago, they couldn't read his computer files because he'd scrambled the data. But the FBI had another trick up its sleeve.

Armed with a warrant, agents sneaked into the house and placed a secret device on his computer to record his keystrokes. That allowed officers to figure out his passwords, open his files, and gather enough evidence to arrest him for running gambling and loan-sharking operations for the Gambino crime family.

That's the latest in a string of high-tech coups that have given law-enforcement a decided edge in reducing crime. From cameras that recognize faces of criminals and e-mail reading systems to tracking devices that can pinpoint the location of a cellphone, police are on the verge of sweeping the streets in ways George Orwell never dreamed of.

There's just one problem.

Their high-tech gadgets may undermine constitutional guarantees to the right of privacy. For years, privacy advocates have warned that new technologies were eroding individual rights. Now, courts and elected officials are beginning to listen.

In June, the US Supreme Court issued the first salvo, ruling that police had to obtain a search warrant before scanning homes with thermal imaging devices. Now, privacy advocates are waiting to see how lower courts will react. Soon, a federal district judge in the Scarfo case will determine whether police need a simple search warrant or a more difficult-to-get wiretap warrant to use keyboard loggers.

If the judge disallows the computer evidence, Mr. Scarfo could go free. If the judge allows the evidence, some say privacy will wither. "We're on the cusp of a surveillance society," warns Barry Steinhardt, associate director of the American Civil Liberties Union (ACLU), based in New York. "The technology is quickly endowing law enforcement and private industry with superhuman capabilities."

After years of seeing their warnings go unheeded, privacy advocates cheered when the Supreme Court voted 5 to 4 that a thermal imaging device trained on a suspect's house constituted a search. Police used the technology to determine that the suspect was using heat lamps to grow marijuana indoors. But the court ruled that such technology required a warrant.

"The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy," wrote Justice Antonin Scalia in the majority opinion.

But for every court decision restricting the use of such devices, several new technologies come along, threatening to shrink privacy even more. Consider:

• By Oct. 1, the nation's wireless telephone companies are supposed to have the ability to pinpoint the location of their subscribers who make emergency 911 calls on specially equipped phones. The system would help dispatchers obtain help to motorists quickly and accurately. But privacy experts say the system will be used to track users surreptitiously in nonemergency situations. The wireless carriers have asked the Federal Communications Commission for more time to implement the system.

• Visitors to the Ybor entertainment district in Tampa, Fla., are routinely scanned by 36 cameras mounted on utility poles and equipped with face-recognition technology. The system compares the faces in the crowds with an image database of wanted criminals and missing children. When it senses a match, it alerts officers who determine whether it's close enough to pursue. Already deployed in a London neighborhood, the technology has cut crime there 40 percent. But privacy advocates complain that honest citizens are being subjected to a virtual lineup.

If satellite tracking and face-recognition software seem impressive, hold onto your computer monitors. More high-tech crime-busters are on the way.

"This is the tip of the iceberg," says Bill Patsche, an agent for the Office of Law Enforcement Technology Commercialization in Wheeling, W.V. "There's a push on to put new technology into the hands of law enforcement because, quite frankly, the crooks have it."

OLETC, part of the National Institute of Justice's Office of Science and Technology, is working to help entrepreneurs develop scanners that can sense weapons 20 feet away, tracking devices for patrol cars, cheap night-vision goggles so even small police departments can afford them, and better cameras for inside the patrol car. The technology doesn't all help Big Brother. OLETC is also helping an entrepreneur make a device that can detect covert cameras in a room, even if they're turned off.

Big Brother governments represent only part of the challenge. Businesses are also keen to use the technology (turning them into what some privacy experts call Little Brothers). For example, nearly 4 out of 5 companies surveyed by the American Management Association this year said they monitored their employees. Sometimes they check their e-mail, track Internet or phone use, or videotape them at work. "Privacy in today's workplace is largely illusory," says the association's personnel practices leader.

Meanwhile, companies are tracking customers, too, amassing patterns of Internet use and purchases to try to market to them more effectively. "I don't think you can ask whether Big Brother is more dangerous than Little Brothers, because they collaborate," says Mr. Steinhardt of the ACLU. Governments sometimes mandate that companies collect certain data. Companies often use government information, such as Social Security numbers, to identify customers.

Some surveillance technology has become so cheap and ubiquitous - especially tiny cameras - that even individuals are using them. "Anybody can do it," says Mr. Patsche of OLETC. Parents could mount a hidden camera or two to monitor a new babysitter, for example. That use might be legitimate, he adds, but the prospect of people spying on each other worries him more than government actions.

For years, some high-tech executives have suggested that privacy no longer exists in the age of Internet and wireless interconnection. But privacy advocates sense a change in public sentiment.

"The public has reached the breaking point with all this technology," says David Sobel, general counsel for the Electronic Privacy Information Center, a public-interest research group in Washington, D.C. "We've gotten to the point where too much is being collected and it's time to stop and look at this."

The issue cuts across party lines. For example, the liberal-leaning ACLU has joined with House majority leader Dick Armey, a conservative Republican from Texas, in opposing the surveillance system in Tampa. Last week, the city council narrowly agreed to continue a year-long trial of the system, provided by Visionics Corporation.

"Technology is a powerful force," concedes Joseph Atick, president and chief executive of Visionics. "But powerful forces in a responsible society can be harnessed for the benefit of humanity."

The key is to develop guidelines on how the system will be used, he argues. In Tampa, for example, the cameras only record faces to compare them with a computer database of wanted criminals. If there's no match, the images aren't kept. Signs in the street inform citizens they're being monitored. And the city has developed guidelines to ensure that only appropriate faces are added to the database.

After technology's sprint forward, technologists and privacy advocates agree, the courts and civil society now must catch up with rules and limits on how that technology will be used. It took 40 years for the Supreme Court to reverse itself and require police to obtain a warrant before using a wiretap. Privacy advocates hope the courts' reaction this time will be faster.

"We are beginning to understand that courts just can't bend over backwards for law enforcement anymore," says Steinhardt. "They have to give [privacy] new meaning in an age when searches are ongoing and constant."

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