Many American citizens take their civil liberties for granted. Many do not realize how valuable their rights and privileges under the United States Constitution really are, until they begin to be taken away. The Fourth Amendment, essentially the right to privacy, is slowly being stripped from the American citizen. The use of TEMPEST, or sophisticated eavesdropping technology to intercept information, including telephone monitoring and video surveillance, is unconstitutional under the Fourth Amendment of the United States Constitution.
The Fourth Amendment of the United States Constitution states that people have the right to privacy in their person, houses, papers, and effects against unreasonable searches and seizures, and that people should not be violated, and no warrants issued, unless there is probable cause. (“U. S. Constitution: Fourth Amendment”, 2009) The Fourth Amendment clearly outlines that the American citizen has a right to privacy from the government. This includes privacy not only in their homes, but out in public.
For instance, anyone can observe another in public, such as walking down the street. However, when law enforcement officials begin to observe regular citizens in their everyday routine, such as going to work, going to the grocery store, picking up their children from school, and the like, that citizen’s right to privacy has been violated. To understand how sophisticated eavesdropping technology to intercept information is a violation of the Fourth Amendment, one must realize how it works.
TEMPEST is a code name for studies and investigations of compromising emanations. Compromising emanations are unintentional signals that can send information to a remote source. For instance, computers, telephones, and video surveillance cameras release interference into their surrounding environment. This interference creates signals that bear some relationship to what was originally caught. Essentially, TEMPEST equipment can remotely mirror what is being done on another device. This is, in its purest form, eavesdropping.
(Pike, 2000) In the case of Kyllo versus the United States, which was argued on February 20, 2001 and decided on June 11, 2001, is an example of the violation of the Fourth Amendment. Law enforcement was suspicious that marijuana was being grown in petitioner Kyllo’s home in a triplex, and therefore, used thermal imaging devices to detect unusual heat sources, perhaps from heat lamps necessary for growing marijuana. Scanning the outside of the house, the agents detected hot spots coming from Kyllo’s garage.
The agents obtained a search warrant, and did indeed find marijuana plants. The evidence was then seized from Kyllo’s home. The Ninth Circuit Court decided that the thermal imaging was not in violation of the Fourth Amendment because Kyllo had shown no attempt to conceal the heat coming from his home, and even if he had, law enforcement agents were still in the clear because the thermal imaging did not expose any intimate details of Kyllo’s life. However, law enforcement used devices that were not in general, public use.
They used these devices to “explore details of a private home that would previously have been unknowable without physical intrusion. ” On these grounds, Kyllo decided to appeal, holding fast to the claim that the surveillance was a violation of the Fourth Amendment. Ultimately, the Court decided that the use of the thermal imaging device to obtain information was a violation of Kyllo’s right to privacy under the Fourth Amendment. The Court rejected law enforcement’s argument that the thermal imaging must be upheld because it detected only heat from the exterior of the house.
Law enforcement’s argument was rejected because it left the homeowner to the mercy of technology. Law enforcement’s argument that the thermal imaging must be upheld because it did not detect intimate details was also rejected because all details concerning a home are intimate details. (“Kyllo v. United States”, 2001) Technology has advanced to the point that the public should be aware of possible videotaping and other types of eavesdropping. For example, hidden cameras scanned the faces of all of the Super Bowl attendees as they entered the stadium in January of 2001.
The pictures were then compared with local, state, and FBI files of known criminals and terrorists. The attendees had no idea they were being watched. The federal government, in addition to local law enforcement, is beginning to strip away Americans’ right to privacy. On September 11, 2001, the attacks on the World Trade Centers exposed the vulnerability of America to terrorism. In response, Congress quickly passed the Patriot Act. The Patriot Act is supposed to provide important national security measures, such as the removal of a statute on limitations for terrorism offenses.
However, it also increased the government’s ability to conduct unwarranted surveillance on innocent individuals without making sure that abuses of power were limited. These examples illustrate the tension between preserving national security and preventing unwarranted government infringement on civil liberties. This infringement is a violation of the Fourth Amendment. (Chandler, 2006) In the months following the attacks on September 11, 2001, everyone was quick to point out a possible terrorist.
People paid attention to what others said, and how they said it, and individuals paid more attention to what they were saying to others. For instance, it was within the realm of possibility that a man in a grocery store, having a casual conversation with someone else, mentions his disagreement with the United States government. Surprised by the FBI at his home a few hours later, he is informed that the individual he had the conversation with at the grocery store believed that his disagreement with the United States government was grounds for informing federal law enforcement of possible terrorist actions.
Not only did scenarios such as this happen, but the government monitored telephone conversations. The law was that telephone conversations can be monitored by law enforcement or by the telephone company. The telephone company can monitor conversations for a number of reasons, including to provide service, inspect the telephone system, monitor the quality of the service, or to protect against service theft or harassment. However, law enforcement can only listen in on telephone conversations with “probable cause.
” (“Wiretapping/Eavesdropping”, 1993) In other words, if one is known to be a hit man, law enforcement can eavesdrop on that individual’s telephone conversations not only to find out if he will go through with committing murder, but also to find out who else is involved. Law enforcement must obtain a court order to eavesdrop on others telephone conversations. However, after September 11th, it was rumored that the federal government monitored all telephone conversations for key words such as bomb, terrorist, etc.
The Bush administration repeatedly insisted that the only telephone conversations they eavesdropped on without court orders were those who were suspected of being linked to al Qaida or other terrorist groups. It is true, however, that after September 11th, the Bush administration made efforts to collect vast amounts of information about Americans’ travel, tax and medical records, e-mails, and credit card purchases. (Landay, 2008) This was all done under the guise of the Patriot Act, which essentially made the Fourth Amendment null and void.
In addition to listening in on telephone conversations, the United States watches the American public through surveillance cameras. Thousands of cameras, both public and private, dot parks and city streets. Once an individual is out in public, the Courts deem those individuals as no longer having any privacy, at least while they are in public. Most people are not aware that they are being watched. If they do know, they do not control what their images are being used for. Most cameras are mounted in trees, on streetlight and traffic poles, on public buildings, on subway platforms, and installed in buses and subway cars.
These cameras are everywhere, and there are more that cannot be seen. Police officials refuse to tell the public about where the other cameras are because they claim that information would “undermine law enforcement’s effectiveness. One of the major problems with hidden cameras in public areas is that cameras penetrate deeper than anyone staring at an individual. If another person is staring at someone, all that person has to do is stare back to discourage the intrusion. However, one cannot stare back at a camera if they do not know where it is. Even if they did know where it was, the eye of the camera would not stop staring.
People behave differently when they think they are alone, and even if one does know about the cameras, the cameras then do not fix the problem. Hidden cameras serve as “super cops. ” These cameras can zoom in to single out a particular individual or to read a letter someone is holding, and can see in the dark due to infrared technology. In the past, police could not do this without probable cause and obtaining a search warrant. In addition to these benefits to law enforcement, cameras can be put in places where a human being could not possibly be, such as perched high atop the side of a building.
These cameras were originally touted as tools to aid in the catching of terrorists and violent criminals, and to prevent serious crimes. The cameras have not done this. The only criminals these cameras have caught are minor offenders such as petty thieves and concert-ticket scalpers. For example, in Washington D. C. , New York City, and San Diego, cameras that were originally meant to catch serious offenders now only catch red-light runners, speeders, and others who park illegally. The problem is this: The faces of random people on the street are being compared with those of criminals.
All of this is being done with no probable cause. Law enforcement targets ethnic and racial minorities, and that coupled with false-positive matches means that innocent people will be arrested for no apparent reason. Even though the Supreme Court has never tried a case where someone claimed the Fourth Amendment was violated because of public surveillance, the Court would most likely find that electronic monitoring of public areas is not a violation of the Fourth Amendment. Technology is beginning to take over American society.
Each intrusion into Americans’ privacy is being introduced as a tool to weed out the harmful individuals. Drug testing and EZ Passes are good examples. At first, drug testing was only used for high security jobs, and now students in extracurricular activities at school are subject to them. EZ Passes were introduced in order to lessen traffic congestion, and now they are being used to issue tickets to speeders. Every tool introduced as being “important” and “helpful” in the fight against crime is now being used to trap innocent citizens, citizens who at first thought these tools were a good idea.
Sociologist Gary Marx explains, “Once the new surveillance systems become institutionalized and taken for granted in a democratic society, they can be used against those with the ‘wrong’ political beliefs; against racial, ethnic, or religious minorities; and against those with lifestyles that offend the majority. ” No one will use public areas if they believe or know they are being watched. The author believes that spaces that are accessible, not defensive, will be used more. The more people use these areas, the safer they will be.
There are more good people than bad in the world, therefore, the chances of someone getting attacked in a group of people are extremely slim. Video surveillance creates insecurity, not a sense of safety. Congress has not yet addressed video surveillance. Hawaii and California have laws to limit video surveillance, and a handful of states have heightened protection of the right to privacy written into their state constitutions. However, even though video surveillance is more intrusive than telephone monitoring, there is currently no federal legislation to govern video surveillance. (Smithsimon, 2003)
In conclusion, the Fourth Amendment of the United States Constitution is being violated in today’s society due to telephone monitoring and video surveillance. Telephone monitoring and video surveillance have secretly crept upon the average American. Most do not give a second thought, or even know, about these types of violations of privacy. Perhaps the average American is aware of the possibility, but tries not to think about such a disturbing and chilling thought. If the average American citizen knew that someone was watching them as they went about their daily business, feelings of paranoia and possibly fear would begin to take root.
America would not feel free any longer. This can be likened to driving at the speed limit when a police officer is driving within close proximity. One is on his/her best behavior, however, when the police officer can no longer be seen, that same person that was on their best behavior just moments before, resumes their fast, reckless ways. However, there is no escape from the cameras that could possibly be watching each and every American. It is amazing how much Americans take for granted, including the civil liberties, the rights and privileges, that the American holds so dear.
– (1993). Wiretapping/Eavesdropping on Telephone Conversations: Is There Cause for Concern? Retrieved May 18, 2009, from Privacy Rights. http://www. privacyrights. org/fs/fs9-wrtp. htm – (2001). Kyllo v. United States. Retrieved May 18, 2009, from Find Law. http://caselaw. lp. findlaw. com/scripts/getcase. pl? navby=CASE&court=US&vol=533&page=27 – (2009). U. S. Constitution: Fourth Amendment. Retrieved May 18, 2009, from Find Law. http://caselaw. lp. findlaw. com/data/constitution/amendment04/ – Chandler, S. A. (Fall 2006). Collateral Damage?
The Impact of National Security Crises on the Fourth Amendment Protection against Unreasonable Searches. University of Pittsburgh Law Review. 68(1), 217-41. – Landay, Jonathan S. (2008). Did U. S. Government Snoop on Americans’ Phone Calls? Retrieved May 18, 2009, from McClatchy Newspapers. http://www. mcclatchydc. com/257/story/53703. html – Pike, John. (2000). TEMPEST. Retrieved May 18, 2009, from Intelligence Resource Program. http://www. fas. org/irp/program/security/tempest. htm – Smithsimon, M. (Winter 2003). Private Lives, Public Spaces: The Surveillance State. Dissent. 50(1), 43-9.
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