Over the last two years, at least 50 law enforcement agencies around the United States have used radar devices that allow them to peer through walls and into your home without a warrant, according to USA Today. The devices, each of which costs nearly $6,000, detect movement – even breathing – through walls and up to 50 feet away.
According to contracts obtained by USA Today, the US Marshals Service began buying the radars in 2012 and has since spent $180,000 on the equipment – enough for thirty Range-R radars manufactured by L-3 Communications. Disturbingly, the radars can even be mounted on a drone.
The devices were originally manufactured for use in Iraq and Afghanistan ,but have made their way onto domestic soil, providing yet another example of how the use of military gear by police results in an infringement of our fundamental right to be free of unreasonable and warrantless searches and seizures.
We should place this radar story in the context of a broader history of law enforcement efforts to avoid the necessity of obtaining a warrant based on probable cause before surveilling your home. The home is traditionally the place where Fourth Amendment protection is strongest, but as digitization progresses, data becomes publicly available on activities within your home that was not previously obtainable. So, for example, smart metering enables your utility and (with a subpoena) your local law enforcement to obtain information on patterns of energy and water usage in your home. Voluntary energy efficiency programs allow local governments to obtain a thermal imaging pattern of “hot spots” in your home. And, of course, Samsung’s voice-activated SmartTV is helping to make Orwell’s “telescreens” a reality. The much-vaunted “Internet of Things” promises to connect these and many other devices in your home to the Internet, enabling you – and law enforcement – to understand more about your use of your appliances. Why does any of this matter, and why would law enforcement be interested? Because any of it can provide evidence of criminal activity.
The radar devices in the USA Today article have been in use for more than two years while the public and courts have been kept in the dark. While current and former officials who discussed the devices with USA Today described the devices as “critical for keeping officers safe if they need to storm buildings or rescue hostages,” the existence of these devices was revealed during a federal appeals court proceeding because officers had used one prior to entering a home to arrest a man for an alleged violation of parole, according to USA Today.
While the model used by the Marshals Service, the Range-R, indicates only whether it has detected movement on the opposite side of a wall, other models of the device exist which feature three-dimensional displays of people’s location inside a building.
Legal concerns abound. As noted by USA Today:
The Supreme Court ruled in 2001 that the Constitution generally bars police from scanning the outside of a house with a thermal camera unless they have a warrant, and specifically noted that the rule would apply to radar-based systems that were then being developed.
This is the ruling in Kyllo v. United States. This (rather peculiar) ruling makes the constitutionality of a particular technology rest in part on whether it is in general use by the public (i.e., its use would be constitutional if it is in general use.)
This is the latest revelation of the Marshals Service’s recently-exposed habit of engaging in warrantless surveillance. In addition to the Marshals Service’s attempts to prevent use of cell site simulators known as “Stingrays” from being disclosed to the public, it was recently revealed by the Wall Street Journal that the Marshals Service is conducting a bulk-data collection operation of their own by mounting similar cell site simulators known as “Dirtboxes” in small aircraft and flying them around the United States.