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The scanning device, seen here, IDs people based on reflections of invisible beams of infrared light.  (Source: Vehicle Occupancy L)
Washington road contractors have some innovative and perhaps intrusive traffic control strategies.

Civil contractor Transurban doesn't want Washington D.C. drivers cheating its toll system -- so it is going to scan them

An expansion of a major Washington D.C. highway I-495, the Capital Beltway, is planned to start next year.  The highway loops around D.C. and crosses through Maryland and Virginia suburbs.

The expansion plans to bring privately operated toll lanes to the table as an alternative for commuters in rush hour traffic.  The big perk is that carpoolers will get to ride in these lanes for free under the current plan.

Enforcement though is a sticky issue; how to determine people from decoy dummies or large dogs riding in the passenger seat?  Rather than manually policing the area, the companies owning the project have proposed using technology that would scan drivers and passengers with bursts of infrared light that detect the reflectivity of human skin.

Ken Daley, a senior vice president of one of the two companies contracted for the project, says that the technology is so advanced that it can accurately ID a human face from an animal such as a pet.

Transurban has given no word on whether the devices might also be used for "national security" or other government purposes.

Washington D.C. drivers are not very happy about the proposal.  They are voicing their concerns to the government, raising uncertainty of whether the project will be approved.  Aside from the general discomfort with the idea of being watched, they fear the move could be used against them legally or monetarily.

Divorce courts could theoretically file for images of a route the husband or wife might have taken to see where they were really going to.  Employers could do the same if they suspected an employee of using their sick days for vacation.  Worse yet, insurance companies could use the information to ID drivers with long commutes and up their rates.

Ginger Goodin, an engineer at the Texas Transportation Institute, feels bad for the concerned commuters. "[Commuters] feel a sense of privacy in their vehicle, even though they may not really have it if you look at the legal cases,” said Goodin.  “[But] if they just can't stomach [scanning systems], then they have their choice, right next to it, to use the general-purpose lane."

The case is drawing attention as it may become an example by which other states choose their policies.  Maryland and Virginia both have planned expansions on their books. 

California and Colorado both have privately run toll roads that are currently free to carpoolers.  In California, police wait behind concrete blocks ready to jet out and pull over offenders.  In Colorado, they use a much simpler system which simply has drivers peel off into a separate lane mid-trip where they are visually checked to avoid payment.

The D.C. area contractors' moves will likely stir up a hornet nest of privacy concerns.  The issue is strikingly similar to the fears surrounding RFID implants and the prospect of mandatory chipping.  Last year Scott Silverman, Chairman of the Board of VeriChip Corporation, who make the only FDA approved RFID implant, proposed a solution to the problem of illegal immigration -- mandatory microchipping of guest workers and anyone found to be illegally dwelling in or trying to enter the U.S.  The previous day President Bush, whose former head of the Department of Health and Human Sciences Tommy Thompson is currently serving on Verichip's board, had called for "high-tech measures to solve the immigration problem."

There is significant pending and passed legislation that aims to protect constituents from unwanted intrusion and scanning.  As reported by DailyTech, California's state Senate recently passed a bill banning companies or anyone else from forcing a California citizen to be involuntarily microchipped.

These issues will not go away as technology becomes more and more entrenched in our day to day lives.  People will likely struggle with these complex moral issues as they ponder whether the benefits of increased safety are worth someone being able to watch them in their daily lives.

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RE: Just for clarification
By Grast on 10/4/2007 12:05:23 PM , Rating: 2

You are assuming that drivers have an expectation of privacy while driving. Privace laws in regards to operating a vehicle are extremely thin. Since driving a car is not a RIGHT, the government has been argueing for years that expectation of privacy on the road is not implied or expected. This is the reason traffic light cameras have not been considered unconstitutional due to unusualy search clause. The simply act of driving extremely reduces an American's right to live their life with little to none goverment involvement.

While I am not fearful of the government, I believe systems such as these will be deployed. The only question will be how much information is available to the public. Since these initial devices are being used by private agencies, the typical public access to the information does not apply.

If in the future, the states or federal goverment started using similar devices, we would have issues with simi-private information being released due to public information establishments.


RE: Just for clarification
By jtemplin on 10/4/2007 1:08:36 PM , Rating: 3
Re: expectations of privacy, please see Plain view doctrine (
However, with the limits of plain view being that it be observed during "lawful observation" in "plain view", there is left room for debate as to the extent of these practices.

One famous example of these limits can be found in the case of an Oregon(-ian?) man who was searched after police used thermal imaging to discover suspiciously high heat output from his home. This was used to obtain a warrant, whereby he was searched and found to be in posession of over 100 MJ plants. His case was appealed to the Supreme court, who ruled in his favor. The basic finding was that thermal imaging of Kyllo's home contstituted an unreasonable search.

Scalia noted that new technologies may potentially infringe on Fourth Amendment rights, but he says it best here, "The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment."
(Full text:

I think that if the highest legal authority (and very highly respected intellectual authority) in the land is concerned that scanning technology may erode our 4th Amendment rights against unreasonable search and seizure, then perhaps we should too.

RE: Just for clarification
By NaughtyGeek on 10/4/2007 4:46:27 PM , Rating: 2
JTemplin, while your point is valid, unfortunately it doesn't currently apply to you when operating a motor vehicle. Under the current law, your within your rights to expect privacy in your home but not in the area within plain sight in a motor vehicle. Actually, I'm pretty sure if you have an MJ plant in your window (plain sight,) it is probable cause for a warrant to search the premises.

RE: Just for clarification
By jtemplin on 10/4/2007 10:55:22 PM , Rating: 2
While in your personal vehicle, you have a reduced expectation of privacy, but I wouldn't say these protections are SUSPENDED. I don't think you are actually trying to make this point, but one could certainly read your post this way since you said concerns about the Fourth amendment do not apply to operating a motor vehicle.

If the plant was in plain view inside the car, that would not contstitute a 4th Amendment protected search, according to the Scalia opinion in Kyllo. So you are quite right.

RE: Just for clarification
By adam00 on 10/4/2007 5:43:58 PM , Rating: 2

Be careful you have misread the meaning of Kyllo v US. The court's issue was not with scanning technology. It was whether the search was of an area where one would reasonably expect a minimum level of privacy.

It was the location not the method used. For example, if you are in the middle of a public park you have Zero reasonable expectation of privacy. Now, it doesn't matter if the govt uses a police officer in the bushes to watch you, an FBI agent uses a camera from 300 yards away or if the CIA uses a spy satellite in space to watch you.

Its not the technology that matters, it is location. You are in a public park... too bad, no privacy.

Now, in your car you have zero reasonable expectation of privacy of people looking through your windshield. Anyone, govt or otherwise can look in your window, so no privacy.

Lets take our hypothetical a little further... what if the technology could hear what you are saying in addition to seeing you. That might be a violation of the 4th ammendment. It would depend on whether or not you had a reasonable expectation of privacy. I would guess that you probably do - my reasoning based upon a reading of other famous 4th ammendment cases involving old style phone booths. But then again, it might turn on whether the windows were up or down. If the windows were down then you probably don't.

See how it all changes - it is location, not scanning tech.

Hope it helps,

RE: Just for clarification
By bbomb on 10/4/2007 9:38:02 PM , Rating: 2
Houses have windows as well so shouldn't that remove the expectation of privacy as anyone can see into them the same as a car?

RE: Just for clarification
By jtemplin on 10/4/2007 10:44:56 PM , Rating: 2
I have enough I won't be putting this in my own words and I just researched this, but I think this should explain your question about the difference between houses and automobiles:

SILVERMAN v. UNITED STATES, 365 U.S. 505 (1961)
The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626 -630. 4 This [365 U.S. 505, 512] Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.

RE: Just for clarification
By jtemplin on 10/5/2007 12:28:33 AM , Rating: 2
I agree with everything you said, except the part about me misreading =D
I just read the Opinion (I went mostly off past knowledge and a quick once over before) and it definitely seems as if the Opinion concerns the technology (the word appears 12 times).

This quote from the opinion is telling:
The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

This is a good question which certainly involves the role of technology in interpreting the Fourth Amendment. There were obviously no thermal imagers around at the time the Bill of Rights was ratified which makes things a bit murkier. They address this murkiness below:

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,” Silverman, 365 U.S., at 512, 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.

Following that quote, we have resolved that this is indeed a "search". Their logic follows from here to its eventual conclusion:
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.
If the officer had obtained a warrant to use the thermal imager on Kyllo's house, this case would not have reached the Supreme Court. He however did not, which violates the procedure of antecedent justification. The officer needs to justify the logic of the search before the search is conducted in front of a magistrate, otherwise this situation
"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96 .

Another good quote from Kyllo regarding technology and privacy:
The Government maintains, however, that the thermal imaging must be upheld because it detected “only heat radiating from the external surface of the house,” Brief for United States 26. The dissent makes this its leading point, see post, at 1, contending that there is a fundamental difference between what it calls “off-the-wall” observations and “through-the-wall surveillance.” But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology–including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.

I see your point that location can override the method used to conduct the search.
However, at some future time perhaps a MEG-like device, so sensitive it can accurately pick up the magnetic fields generated by the ionic currents in neurons and able to solve the inverse problem ( and able to filter out background noise etc, can accurately image the electrical activity of the brain. Now picture that this electrical activity can be compared to some known values, or whatever--this is supposed to be a stretch of the imagination, indicating a desire to say, get high. So I could be in a park thinking about smoking the joint in my pocket, while nearby a police officer uses this "mind reader" and searches me and finds said joint.
Now in this example, I think the court and society would agree that the contents of ones mind are reasonably expected by a person and society to be private, regardless of where the thought was conceived. This gets back to Katz where they stated that the Fourth Amendment is more concerned with people than place.

I guess it seemed like I was taking issue with these cameras in particular, but it simply reminded me of all these problems that come up with privacy and technology. I was really trying to get at the bigger issue of government intrustion on the Fourth Amendment, as the post I was replying to brought up. Hope I didn't miss anything..heh

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