Private life

Big Brother infrared?

In their efforts to nab marijuana traffickers, Canadian investigators can now deploy an infrared detection system to obtain information from inside a suspect’s home, without physically entering the premises, and without requiring a search warrant. In a unanimous ruling, the Supreme Court of Canada authorized this practice in October 2004. South of the border, the U.S. Supreme Court still considers this practice unconstitutional and a violation of personal privacy.

Infrared imaging devices, affixed to the underside of planes flying over suspect neighbourhoods or placed in front of a home, detect intense heat sources, even located under roofs or behind walls. Since the marijuana grow operations require powerful incandescent lights, infrared technology offers an additional element of proof when police suspect an owner of hiding an illegal grow operation. “This is an unusual situation,” states Prof. Karim Benyekhlef of the Faculty of Law at the Université de Montréal, and a researcher specialized in the impact of new technologies. “The Americans, renowned for the extensive powers they grant their police forces, have refused them the right to use infrared, while Canada, with its less repressive tradition, has granted this right without limits. In the ruling (R. vs Tessling), the seven judges unanimously supported legalizing the use of this technology.”

For Prof. Benyekhlef, the ruling handed down last fall weakens what had been a cardinal rule of Canadian law, namely, that the private home is “one’s castle and fortress.” The infrared legislation has introduced some serious cracks in the foundation of that fortress. Walter Tessling, of Windsor, Ontario, is the most well-known Canadian to have paid a high price as a result of this revolutionary technology. In April 1999, infrared raised suspicions that Mr. Tessling was housing an illegal marijuana grow operation. This information helped the RCMP to obtain a search warrant, leading to a major seizure of marijuana, drug trafficking equipment and firearms from his home.

The accused contested the use of this new technology as a flagrant invasion of personal privacy. Mr. Tessling won in appeal court where the judge ruled the method of investigation “Orwellian,” referring to the novel 1984 in which the State resorted to all manner of technology to spy on its citizens. Law student Laurent Hétu, who wrote an excellent summary of the issue for the journal Dire, explains that the Supreme Court of Canada considers heat emanating from a home to be information relevant to a location, not a person. So infrared imaging cannot be compared to the watchful eye of Big Brother!

Furthermore, the police cannot limit their investigation to infrared images to incriminate drug traffickers. As Hétu wrote, “It is not possible to differentiate heat produced by a Jacuzzi from heat produced by lamps used in a marijuana grow operation.” At best, information from these thermal images can be used to support other well-founded proof.

For Karim Benyekhlef, however, the precedent set by this ruling is cause for concern. “Up until now, only what the eye could see around a home was considered public in nature. With the Tessling ruling, the scope of ‘seeing’ has been expanded exponentially. And where will it end?” In summer 2005, this question was tackled by 12 American students and another dozen Canadian students participating in the Faculty of Law’s Summer School. UdeM professors and students invited their colleagues from Villa Nova University, in Philadelphia, to participate in international seminars over a three-week period. This year, infrared technology and the invasion of personal privacy were at the heart of the debate.