Debate: Civil Liberties in Today's World: Privacy and Rights of the Accused
This is a class set, hand in when finished
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Benjamin Franklin, Historical Review of Pennsylvania, 1759
At one time not too long ago, discussions of privacy and the rights of the accused were, to a great extent, academic questions. Political
science professors worried about the delicate balance among privacy, liberty, and security, but most people didn't give it much
thought. Things have changed, and the situation was in flux well before the terrorist attacks of September 11, 2001. However, the
breakdown of security on that day is bringing the issue into focus. In reality, the issue now focuses on questions of advancing
technology and encroaching government. And, as surveillance methods become more sophisticated, what rights do the accused -- and
those not yet accused -- retain? In this activity, learn about both sides of this debate, and then see how you can become involved.
Introduction
In this exercise, you confront two key civil liberties issues. The first involves the rights of the accused and the admissibility of
evidence. The second involves the right to privacy and ever-encroaching technology. These issues have overlapped in a number of
recent Supreme Court cases. Spotlight Evidence illegally obtained by the police is generally not admissible in court. Many people,
mainly conservatives, argue that the way evidence is obtained is not relevant. Others argue that exclusion is the only way to prevent
police misconduct. How far can the government go before it illegally infringes upon a person's privacy? When is evidence illegally
obtained? Kyllo v. U.S., a case argued before the U.S. Supreme Court in 2001, considered whether police could use thermal scanners
to detect "hot spots" from the outside of a residence. The heat would be indicative, possibly, of grow lights and illegal marijuana
plants. Would the heat signature provide a "probable cause" to obtain a search warrant? In this case, the warrant was obtained and
police raided the house. Inside, they found marijuana plants growing. The defendant contended that the search was illegal because no
probable cause existed until after the police pointed the scanner at his house -- that pointing the scanner was in itself an illegal search.
The Court agreed and dismissed the charges.
As you contemplate the debates about privacy and rights of the accused that follow, keep these questions in mind:
1. Does terrorism change the concept of admissibility? Does the definition of "admissible" change as technology changes?
2. What is meant by "expectation of privacy?" Is this a fluid definition? Does such a concept even exist any more?
The Debate The Case for the Right of Privacy
The following essay incorporates many of the views of privacy experts that you would find in other essays, editorials, and opinion
pieces.
There is no more sacred civil liberty than the simple right to be left alone. The Fourth Amendment to the U.S. Constitution guarantees
a citizen the right to be secure against unreasonable searches of his person and possessions. Technology unchecked will eventually
give government entities unencumbered access into an individual's private life. Unless clear boundaries are drawn, the rights of private
individuals will clearly be eroded.
The Kyllo case was an effort by a local government to take privacy rights down a dangerous road. Peering inside someone's home is
an obvious violation of their rights. Citizens have a reasonable expectation that the government will not be watching them through the
walls of their residence.
The Supreme Court agrees. Justice Antonin Scalia, long noted as one of the Court's most conservative jurists, said in his majority
opinion:
. . . in the case of the search of the interior of homes the prototypical and hence most commonly litigated area of protected privacy
there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is
acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode
the privacy guaranteed by the Fourth Amendment. We think that 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
constitutes a search at least where (as here) the technology in question is not in general public use. This assures preservation of that
degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the
information obtained by the thermal imager in this case was the product of a search.
No one can confuse Scalia with someone who is soft on crime or overly sympathetic to the rights of criminals, but it was clear to him
that such unwarranted surveillance undercuts the entire meaning of the Fourth Amendment.
It is important that illegally obtained evidence not be admissible in court. Above everyone else, legal authorities must follow the rules
as they enforce the law. The exclusionary rule has been an important limit on police power, barring illegally obtained evidence from
being introduced in court. Since Mapp v. Ohio, the exclusionary rule has been applied to states and their subordinate governments as
well. Exclusion is the only reasonable way to deal with police misconduct. The police will not act in good faith if they can illegally
obtain evidence in return for a slap on the wrist. Knowing that they will lose the evidence helps keep them in line.
The unwarranted use of thermal imaging destroys the concept of privacy in the home. The police allegation that the device was merely
pointed at heat escape points along the roof line clouds the issue and covers up the more important concern. Such imaging can be used
to detect human activity within the house. Government officials, using thermal imagery detection, would be able to sit outside your
house and follow the most private of human actions: bathing, using the restroom, and engaging in sexual activity.
The question of privacy goes far beyond this one case. How much technology can the government use without violating privacy and
personal security rights? Face-scanning technologies now allow government entities to pick a face out of the crowd and compare it
with a database of criminal or others who might be on their "questionable person" list.
* Should the government have probable cause before employing such measures?
* Are there different standards for different settings?
* Should a public carrier, like an airline, have more freedom to scan than a government entity?
* Is there a different expectation of privacy when walking down a public street than there is when boarding a plane?
The point is not that technology should never be used in criminal prosecution or in surveillance situations. The point is that probable
cause and expectations of privacy must figure into the situation. Airport security is one thing -- there is certainly a lowered expectation
of privacy in transportation after the September 2001 terrorist attacks and the failed 2006 plan to explode commercial American
airplanes flying from London to the United States. That, however, is far different from police randomly scanning people at a public
event, as they did at the 2001 Super Bowl in Tampa, Florida. This is a line that government should not be allowed to cross. The Fourth
Amendment matters -- we should continue to expect to be secure in our person and possessions.
The Debate The Case for Protecting the Public
Many sources can be found to support the argument that the United States should be more vigilant in efforts to stop criminal activity.
This essay summarizes their major concerns.
The civil liberties of all Americans are at risk when we protect the criminals at the expense of society. It is the responsibility of
government to use all means at its disposal to track down and prosecute the criminal element.
Even the detractors of the police action in Kyllo can't deny one fact: The accused was illegally growing marijuana in his home.
Furthermore, with 100 plants in cultivation, there is no doubt that he was a dealer. Also, it is not as if the only evidence obtained on
Kyllo came from the electronic surveillance. Both informants and high electric bills pointed to the probability that Kyllo was engaged
in illegal activity.
Thermal imaging is nothing new. The technology has been around for years. As the Court admitted in its flawed majority opinion in
Kyllo, technological advances necessarily change the definition of the expectation of privacy. For instance, evidence obtained from a
property fly-over is permissible, even if it reveals information that would not be uncovered through the "plain view" doctrine from off
property. (It does, in effect, add a "plane view" doctrine to the exceptions for legal warrantless search.) The Court further admits that
images obtained from the air can be electronically enhanced -- again, a change in technology has fostered a change in the "reasonable
expectation" of privacy.
In his well-reasoned dissent, Justice Stevens said:. . . the equipment in this case did not penetrate the walls of petitioners home, and
while it did pick up details of the home that were exposed to the public, it did not obtain any information regarding the interior of the
home.
He continued: Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather
than any through-the-wall surveillance, the officers conduct did not amount to a search and was perfectly reasonable.
The owner was not precluded from taking additional steps to protect his privacy. Then, added Stevens: On the other hand, the
countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the
detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both
intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from
outsiders, to make sure that the surrounding area is well insulated.
The use of technology has become even more important because of recent world events. The use of facial recognition scanners will
allow us to catch terrorists and other criminals when they least expect it. One would reason that terrorists would take efforts to conceal
their identity when involved in terrorist activities. The ability to catch them when their guard is down -- perhaps during a period of an
"expectation of privacy" -- might mean the difference in preventing a future attack.
The bottom line is this: The innocent have nothing to fear. It's the guilty -- from terrorists to drug dealers -- who must fear encroaching
new technology.
Name ___________________________________ per. _____ Date
Conclusion- Ticket Out Debate: Civil Liberties in Today's World: Privacy and Rights of the Accused
Complete on your own, this is not a group project. Hand in at the end of class
The debate about privacy and the rights of the accused continues to grow more complicated. Increased concerns about national
security have focused more attention on privacy rights. As you leave this exercise, consider the following questions:
______1. The idea that thermal imaging will be used to watch private activity is an example of
a. what type of argument?
b. sentimental appeal
c. slippery slope
d. bandwagon appeal
e. expert testimony
______2. To reinforce their arguments, both essays use
a. experts and authorities.
b. statistics.
c. polls.
d. news reports.
______3. The essay supporting "Protecting the Public" is more deeply rooted in which?
a. American principles
b. reciting statistics
c. polling information
d. family values
______4. The pro-privacy essay tries to persuade the reader that
a. the Court's interpretation in Kyllo is incorrect.
b. the Court's interpretation in Kyllo doesn't go far enough.
c. the Court's interpretation in Kyllo is correct.
d. none of the above
______5. When the pro-surveillance essayist uses the term "plane view," the argument is
a. an emotional appeal.
b. an appeal to values.
c. humorous
d. a recitation of expert testimony.
1. How much freedom are you willing to trade for security? Explain.
2. Does government intrusion make us safer? Why or why not?
3. Consider again the quote by Benjamin Franklin at the beginning of this exercise. Do you think that he was right? Explain.