The National Applications Office: Putting Spies in Your Living Room
Last fall, on October 1st, 2007, the Department of Homeland Security (DHS) was set to launch the newly formed National Applications Office (NAO). According to a DHS fact sheet, the NAO primary purpose was to facilitate the exchange of satellite imaging between reconnaissance satellites and civilian law enforcement agencies. The program initially will focus on scientific and emergency response needs such as tracking forest fires and assessing damage after natural disasters. Eventually, the program intends to allow local law-enforcement to access such imagery. In other words, local cops may soon have the ability to track you using real-time, high resolution imagery. If this scenario evokes images of the Will Smith thriller, Enemy of the State, that is exactly what this program may eventually evolve into with law enforcement officials tracking U.S. citizens with their invisible camera in the sky. At least one expert, Kenneth Silber from Space.com, estimates that reconnaissance satellites are capable of producing images with a resolution of 10cm " close enough to distinguish you from the person standing next you.
When Congress got wind of this program they, as they so often do, held a chest-thumping hearing decrying the program as an assault on civil liberties. Proponents of the program hailed it as a step in protecting our homeland by granting local law-enforcement access to more efficient technology. Critics decried the program as an assault on the privacy rights of American citizens. The hearing prompted DHS to postpone the launch of the NAO while they undertook a year-long review of civil liberties implications. According to a recent Wall Street Journal article on October 2nd, 2008, the DHS has decided to launch the program immediately despite lingering privacy concerns. The program is to be implemented in phases. Congress has approved a bill allowing the DHS to launch a limited version of the NAO focusing on emergency response and scientific needs. Further approval by Congress must be sought before the NAO phases in its law-enforcement surveillance operations.
The program and the surrounding controversy raise a central question: Will the NAO protect the homeland or illegally put spies in your living room? Coming from a legal background, my first reaction is not one of immediate outrage but one of muted concern coupled with the need to base my opinion in the law. At first glance, the program does not appear to violate current Fourth Amendment privacy law. In the realm of warrant less searches, physical surveillance by police officers " as everyone knows from CSI and the myriad of Law and Order shows " does not violate the law. Physical surveillance is routinely conducted by undercover cops so most people have no idea they are under surveillance. Why should surveillance from the sky be any different? When you boil it down to the basics, whether it's from the sky or from the ground, in both instances, the subject doesn't know they are under surveillance.
Several Supreme Court cases have discussed the Fourth Amendment implications of aerial surveillance. In this context, the Supreme Court has consistently held that aerial surveillance from a publicly accessible vantage point does not violate the Fourth Amendment. Thus, if anyone could fly a plane over a person's backyard and view that backyard, police may do the same. However, when using technology that is not in general public use, the law is less clear. Critics of the NAO point to Kyllo v. United States, the most recent Supreme Court case dealing with innovative surveillance technology. In Kyllo, police used a thermal imaging device to detect heat variations inside a subject's house in order to determine that the subject was growing marijuana. The Supreme Court held such action unlawful stating where, -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" violates the Fourth Amendment. This case, however, should have no bearing on the use of satellite imagery proposed by the NAO. In using satellite imagery, local police would not be able to see inside the home of a citizen. They would simply be able to do what they have always done, except now they can do it using satellites. Think about it, right now, police can fly over your backyard to observe your actions as well as use undercover cops to track your every move through the streets. How will the use of satellites change this? It won't. The use of satellite imagery will permit the same actions without the use of human personnel.
In my opinion, the outcry against the NAO is overstated. Yes, there should be safeguards in place to ensure that the program doesn't tramp on your privacy rights. And yes, citizens have the right, in fact the duty, to speak out against infringements on their civil liberties. However, people should keep one thing in mind when thinking about the NAO: if police can already do it, why not let a satellite do it? Permitting local law-enforcement to use satellite imagery would allow our cops to more effectively protect our streets and save lives.