Chattanooga, TN is currently debating whether to continue the use of a particular advanced line of streetlights that offer  the potential for implementing several exciting and useful features. The LED streetlights are more energy efficient and save the city money, and they can also be wirelessly controlled to dim, become brighter, or even flash depending on the needs of the city and the police. In addition, the streetlights may soon have the ability to do something much more controversial: detect meth lab emissions. As it’s unclear what method of detection would be used, we’re going to keep it simple and work under the assumption that the street lamps detect chemicals in the air (as opposed to surface detection or other means) related to methamphetamines and/or their production.[1]

Considering that most people tend to agree that methamphetamines are a scourge upon society, slipping this feature into a widely distributed mainstay of public spaces would easily appear to be an acceptable and progressive use of technology promoting the greater good of society. Even the most liberal legalization advocates recognize the inherent health risks associated with methamphetamines that are not present with many other illegal drugs. Yet, under the guise of “cracking down on crime,” are we not creating a precedent for increasing the widespread invasion of public privacy? Couldn’t this lead to police gaining the ability to question hundreds of people or search entire blocks of houses if a streetlight detects meth?

McLendon Avenue in Atlanta, GA

Supreme Court Rulings Don’t Bode Well for Privacy

The 4th Amendment of the US Constitution protects us from unreasonable searches and seizures by the government. Generally speaking, police run astray of the 4th Amendment when they conduct a search without a warrant or probable cause. This manifests itself in two ways: 1.) police unlawfully trespass on our property or seize our property when they conduct a search without a warrant or probable cause; and 2.) police violate our privacy when they observe us without a warrant or probable cause to such an extent that it interferes with our reasonable expectations of privacy. (Note: trespassing is generally used in the context of real property, such as your house or yard, and seizure is generally used in the context of personal property, such as your car or phone)

A preeminent case in this area of law is the 2001 case, Kyllo v. United States. In an opinion authored by the late Justice Scalia, the Court held that police cannot use thermal-enhancing detection devices to monitor homes for the purposes of detecting marijuana cultivation since such actions violate our reasonable expectation of privacy even though no physical trespass occurs. According to the Court, such devices are not widely-available to the public and have the ability to reveal intimate details of our daily lives without revealing any illegal activity.

In 2012, the US Supreme Court ruled that when police attach a GPS tracking device to a car to monitor the car’s whereabouts without probable cause or a warrant, they are violating the 4th Amendment by unlawfully trespassing (i.e., seizing). The majority found no violation of privacy rights, but the practice was nonetheless unconstitutional because police had unlawfully trespassed on the property. See United States v. Jones.

With respect the drug-detecting dogs, the Court has recently issued three major opinions:

Illinois v. Caballes: In 2005, the Supreme Court declared that police do not violate our reasonable expectation of privacy when they use well-trained narcotics-detection dogs to search the outside of cars that have been pulled over for traffic violations. Though the police had no indication that drugs were in the car, the Court allowed them to go ahead and use dogs to search around the car to see if they could find anything. According to the majority of the Court, such searches do not run the risk of exposing private details without exposing illegal activity.

Florida v. Harris: In a related 2013 case, the US Supreme Court held that an indication by a well-trained narcotics-detection dog does provide probable cause for conducting a search in this scenario, overturning a previous decision made by the Florida Supreme Court.

Jardines v. Florida: In 2013, the Supreme Court found a violation of the 4th Amendment when police used a narcotics-detecting dog to search the outside of the defendant’s house. Justice Scalia, in his opinion for the majority of the Court, found no violation of our reasonable expectation of privacy, but a trespass violation since the police had neither a warrant nor probable cause (similar to the GPS case).

This is a very messy area of law with multiple camps of justices employing either or both of the trespass and privacy components of 4th Amendment jurisprudence. Generally speaking, the Court has historically given more weight to privacy rights involving the home and less weight to privacy rights outside the home, though that may be changing. In the Jones GPS case, Justices Scalia, Thomas, Roberts, and Kennedy believed that attaching a GPS device only violated the trespass/seizure component while Justices Breyer, Kagan, Ginsburg, and Alito maintained that sophisticated technology used to monitor the whereabouts of a car only violated the reasonable expectation of the privacy component. Only Justice Sotomayor believed such tactics violated both the trespass and privacy components.  

A similar thought process is demonstrated when considering the use of drug dogs to surveil private homes. Justices Kennedy, Breyer, Roberts, and Alito all believed such surveillance tactics constituted neither a privacy nor trespass violation. Justices Scalia and Thomas, meanwhile, concluded that such tactics violated trespass rights, but not privacy rights. Thankfully, Justices Kagan, Sotomayor, and Ginsburg deduced that such practices violated both our reasonable expectation of privacy and the rights we have to prevent people (including police) from trespassing on our property.

So the Court is fine with dogs detecting air inside a car, but not okay with dogs detecting air emitted by a home or heat produced inside a home. But what about streetlights that monitor air quality to detect drugs? The jurisprudence in this area is clearly a mess and the answer to the streetlight question may hinge on who fills the vacancy on the Court left by the late Justice Scalia.

Do Police Now Have the Ability to Stop and Question Everyone on the Street?

Minimizing methamphetamine abuse would likely benefit public health, but we should put limits on just how much surveillance can be done for the sake of eradicating a drug that boasted a 2013 user base of only 0.2% of the population. If we allow police to aimlessly scan the air for meth because the public doesn’t question the moral implications associated with  policing such a demonized drug, what’s next? We don’t know what type of technology will exist in the near future that will allow the quick detection of more intimate details. Allowing the government to analyze the air for methamphetamine could lead to allowing them to analyze the air for marijuana, or people with HIV, or people with alcoholism (maybe this is a stretch now, but it could happen).  This meth-detecting streetlight gives governments an easier path to prosecute members of a community when society is increasingly demanding the decriminalization of drugs, an end to the drug war, and less general intrusion into our private lives.  

Candler Park in Atlanta, GA

The fundamental problem, at least in a legal sense, is that the Supreme Court continues to believe we have a lower expectation of privacy outside of our homes. What may not be an acceptable surveillance tactic when used against someone in their home may be perfectly acceptable once that person leaves their home. While historically society may have agreed that we do have lower expectations of privacy outside of our homes, that sentiment is quickly changing as surveillance technology becomes more widespread and intelligent. Certainly most would agree that people (including police) have the right to look at us when we walk down the street, but we probably don’t agree that those people have the right to monitor air particles that are emitted from our person, our home, or our car without cause.

So given the Supreme Court’s rulings on the topic, what happens when a streetlight detects meth or marijuana in the air? Do police now have the ability to stop and question everyone in the vicinity? Do they have the ability to search every house in a one-mile radius? It’s unclear.

Giving law enforcement the ability to remotely dim and brighten streetlights raises general policing concerns. Apparently the sentiment is that such technology will make it safer for police to exit their cars by allowing them to enhance the lighting, or easier to enter a suspect’s house by dimming the lighting. But do we know this is the only way it will be used? One can easily imagine some police constantly keeping lights very bright in poorer areas and keeping the lights at a more reasonable brightness in wealthier neighborhoods. Such policies are what we would find in a full-fledged police state. While lighting dark streets likely makes us safer, there is some inherent right to darkness during the night-time hours. Technology that allows police to easily abuse that privacy needs to be carefully considered; or rather, the police who could abuse that technology need to be closely watched.

Enhancing our expectations of privacy outside of the home could help combat government intervention in our private lives. The Supreme Court’s murky dichotomy between home-space and non-home space that’s used to analyze surveillance tactics encourages us to never leave our residences. A streetlight that has the power to constantly monitor the air throughout a community should be a concern for us considering the Court’s historically unpredictable, but generally laissez-faire, approach towards privacy outside the home. While the streetlight offers the potential for many useful services, it should make us question which principle we value more in society: punishing those that have probably broken the rules, or protecting those that are more likely innocent.