01.22.15

Grassley & Leahy Press Administration On Use Of Radar Technology To Look Inside Private Homes

Lawmakers Send 2nd Oversight Letter In One Month On Use Of Invasive Technology By Law Enforcement Agencies

WASHINGTON (Thursday, January 22, 2015) – Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Patrick Leahy (D-Vt.) pressed Attorney General Eric Holder Thursday on the reported use of radar technology that may enable law enforcement agencies to track the movements of private citizens inside their homes.

Until now, possible law enforcement use of this technology, which can detect movement within buildings, has not been publicly discussed, according to a recent news report.  But a 2001 Supreme Court decision, Kyllo v. United States, determined that the use of thermal imaging equipment without a warrant violated the Fourth Amendment of the Constitution.

“We appreciate the potential law enforcement value of these devices,” the Senators wrote.  “However, technology that can essentially look inside peoples’ homes presents privacy concerns of the highest order.  There has been little to no public discussion of this technology and it is unclear whether agencies are obtaining any legal process – let alone a warrant – prior to deploying it.” 

The letter sent to Holder today comes less than a month after the Senators raised similar concerns with Holder and Secretary of Homeland Security Jeh Johnson about the use of cell-site simulators, which can sweep up the cell phone signals of innocent Americans without their knowledge.

On Thursday, Grassley and Leahy said: “This pattern of revelations raises questions about whether the Justice Department is doing enough to ensure that — prior to these technologies’ first use — law enforcement officials address their privacy implications, seek appropriate legal process, and fully inform the courts and Congress about how they work.  There is also a question as to how many other new technologies are being used by law enforcement agencies that raise similar privacy concerns.”

 

A copy of the January 22 letter to Attorney General Holder can be found online and below.

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January 22, 2015

The Honorable Eric Holder

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Dear Attorney General Holder:

According to a recent USA Today article, the Federal Bureau of Investigation, the U.S. Marshals Service, and dozens of other law enforcement agencies have access to radar technology that can precisely detect movement inside buildings.[1]  We appreciate the potential law enforcement value of these devices.  However, technology that can essentially look inside peoples’ homes presents privacy concerns of the highest order.  There has been little to no public discussion of this technology and it is unclear whether agencies are obtaining any legal process – let alone a warrant – prior to deploying it. 

Privacy of the home is at the core of the Fourth Amendment.  More than a decade ago, the U.S. Supreme Court decided that the use without a warrant of thermal imaging equipment that could detect activity inside a home violated the Fourth Amendment.[2]  Similarly, in 2013, the Court found a Fourth Amendment violation when police brought a drug-sniffing dog onto an individual’s front porch without a warrant.[3]  Unsurprisingly, the U.S. Court of Appeals for the Tenth Circuit recently noted the “obvious” and “grave” Fourth Amendment concerns associated with the use of the radar technology that is the subject of this letter.[4] 

  On December 23, 2014, we raised similar concerns in a letter to you about the use of cell-site simulators (sometimes referred to as “Stingrays” or “dirtboxes”), which can collect data from large numbers of cell phones in their vicinity — including phones in private homes.  This pattern of revelations raises questions about whether the Justice Department is doing enough to ensure that — prior to these technologies’ first use — law enforcement officials address their privacy implications, seek appropriate legal process, and fully inform the courts and Congress about how they work.  There is also a question as to how many other new technologies are being used by law enforcement agencies that raise similar privacy concerns. 

Accordingly, please arrange for knowledgeable officials to provide a briefing to Judiciary Committee staff no later than February 13, 2015.  Thank you. 

 

Sincerely,

            Charles E. Grassley                                                     Patrick J. Leahy

Chairman                                                                     Ranking Member

Senate Committee on the Judiciary                            Senate Committee on the Judiciary

 

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