Once again, Mayor Bloomberg’s private army is in the vanguard of new surveillance technologies. The NYPD has just taken delivery of a portable machine capable of detecting the terahertz radiation emitted by every human being. It allows them to remotely detect guns or other inorganic illegal materials being concealed under people’s clothing. Suspects! We meant suspects’ clothing! We didn’t mean accidentally to suggest that the NYPD would search people just for standing around and not being guilty of anything. That would be ridiculous.
This raises some fascinating Constitutional issues, and as usual, Fourth Amendment legal superstar Orin Kerr is right on top of it:
Use of this technology raises two primary Fourth Amendment questions. First, does it constitute a search under Kyllo v. United States? More specifically, does Kyllo apply when the device is used to obtain details from inside a person’s clothes rather than inside a home? And second, if use of the device is a “search” under Kyllo, what is the standard for when such a search is reasonable? Do you match the Fourth Amendment standard for a “virtual frisk” with the existing standard for a physical frisk? Or is the virtual frisk more or less invasive than the physical frisk in a way that would require more or less cause? Interesting questions. […] A fair starting point would be to treat the virtual frisk just like they treat a physical frisk — allowing it and forbidding it in the same circumstances. Using the scanner would be a search that is reasonable only if there are specific and articulable facts to believe that the suspect is armed and dangerous. That way, the new technology does not considerably alter the preexisting balance of government power and individual rights. The government’s counterargument presumably would be that scanning to detect a gun is less invasive than actually patting someone down to find a gun: Scanning is less obtrusive because it does not involve any physical invasion or retrieval. But Kyllo suggests that this sort of more or less intrusive analysis may not apply in the case of sense-enhancing devices. And given the fact that the scanning technology itself can change over time, it’s problematic to generate a constitutional rule that may only apply to the current version of the technology — assuming that it does for that.
The problem here is that, as is the case with many digital technologies, the individual scan may be less intrusive than a hands-on frisk; but that the low cost and simplicity of digital frisking may result in mass scanning, which would pose (we think) a Fourth Amendment issue separate from and much more serious than whether a single scan was constitutional. The courts may not be ready to grapple with it, but it’s coming, so the people better be ready.
Thanks to The Volokh Conspiracy and the New York Daily News for materials used in this post.