Editorials

Wednesday, June 13, 2001

Court guards
privacy against
high technology

The issue: The U.S. Supreme Court
has adopted a standard for the right
against unreasonable search and
seizure with technology used
by law-enforcement agencies.

EXPECTATIONS of privacy have been rendered shaky in a world of rapidly advancing technology. In a timely although narrow decision, the U.S. Supreme Court has provided much-needed direction to those expectations by creating a wall against intrusions accomplished with hi-tech devices that are "not in general public use." It seems to be a good standard that undoubtedly will be applied in various ways in arguing about whether a myriad of future devices -- sometimes the same devices at different times -- will be useful to law-enforcement agencies or held as taboo.

The case involved federal law-enforcement agents' use of a thermal imaging device outside of a home in Florence, Ore. It was used to reinforce the agents' suspicion that high-intensity lamps were being used inside the home to grow marijuana. The information was used to obtain a search warrant, and agents found more than 100 marijuana plants.

The device recorded heat levels emitted from different exterior parts of the home, not within the home, a distinction that Justice John Paul Stevens saw as important. In a dissent, Stevens pointed out that the thermal imaging was "off-the-wall surveillance," not "through-the-wall surveillance." Technically, the device recorded heat outside the home, but emanating from inside.

Justice Antonin Scalia wrote for the 5-4 majority that the device still was intrusive. "Where, as here, the government uses a device that is not in general public use, to explore details of the home that previously would have been unknowable without physical intrusion," Scalia wrote, "the surveillance is a 'search' and is presumptively unreasonable without a warrant." He added that any other approach "would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home."

The court previously had ruled that law-enforcement agencies can use helicopters to see over walls, can examine garbage a homeowner has left at the curb and can act on a dog's sniff of baggage, all without violating the Fourth Amendment's protection against unreasonable searches.

Courts may rule differently in the future regarding the same devices at issue if they become more commonplace. "Twenty years from now you may be able to buy thermal imaging technology at a Wal-Mart," said Harvard Law School professor Bill Stuntz. "Then either we get less privacy or the court has to draw another line."

If that happens, it is true that the line may have to be redrawn for the thermal imaging device, but the standard can and should remain the same. In deciding upon future technological devices, people should be protected against wizardry that the public has not put to ordinary use.

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Not runny? Not sunny?
Only over hard...auwe!

The issue: Uncle Sam says
we must eat hard-cooked eggs
for our own health.

DOCTOR Seuss's Sam might have ended up liking green eggs and ham, but Uncle Sam has made his preference clear. He doesn't mind if he eats them here or there, he likes them anywhere as long as his eggs are cooked through and through. That is the word from the Food and Drug Administration, with the following edict to be posted on egg cartons beginning in September: "To prevent illness from bacteria: keep eggs refrigerated, cook eggs until yolks are firm, and cook foods containing eggs thoroughly."

Whether green or purple or white, uncooked eggs can infect people with salmonella enteritidis. The bacteria causes severe diarrhea that can last four to seven days and in young children and vulnerable elderly can cause death unless treated promptly. An estimated 1.4 million people a year are infected, according to the FDA.

"You just need to cook your eggs thoroughly -- no sunny-side up, no over easy," says FDA Commissioner Jane Henney. But enforcement won't be the federal government's responsibility. Instead, it will leave that up to the states, which may be difficult in Hawaii, where many people do not like hard eggs in a house, with a mouse, here or there or anywhere.

Some restaurants will warn customers about the regulation, and allow customers to decide while others may not give them a choice because of liability issues. But it's not likely that Uncle Sam will patrol neighborhoods during breakfast hours, busting into kitchens to check egg rigidity.

The statement on eggs goes beyond what Uncle Sam requires on cigarette cartons, which simply warns that smoking causes lung cancer and other diseases, but doesn't say don't do it. It's an awareness issue, says the FDA. People may not know that eating undercooked eggs can be risky.

Without enforcement, the government essentially leaves it up to the individual to eat runny eggs, which is as it should be. What the FDA is saying is that the choice is yours -- and so is the risk.

You do not like hard eggs? So you say. Try them, Uncle Sam urges, try them and you may say, "I like hard eggs! I do! I like them, Uncle Sam. But if I get sick, I won't blame you!"

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Published by Oahu Publications Inc., a subsidiary of Black Press.

Don Kendall, President

John Flanagan, publisher and editor in chief 529-4748; jflanagan@starbulletin.com
Frank Bridgewater, managing editor 529-4791; fbridgewater@starbulletin.com
Michael Rovner, assistant managing editor 529-4768; mrovner@starbulletin.com
Lucy Young-Oda, assistant managing editor 529-4762; lyoungoda@starbulletin.com

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