Click Here to read original "Weapon-scanner raises constitutional concern"

Weapon-scanner raises constitutional concern

Wednesday, 30 May 2001 19:49 (ET)
Weapon-scanner raises constitutional concern
By KELLY HEARN, UPI Technology Writer
 BOULDER, Colo., May 30 (UPI) -- A federal agency is developing a
radar-like device that uses electromagnetic waves to peer through clothing
and detect concealed weapons from up to 15 meters (50 feet) away.
 News of the planned system comes amid national angst over domestic
terrorism while adding a new dimension to the debate over the
constitutionality of high-tech policing practices.
 Government sources said they hope to have a working prototype of the
device by year's end. The apparatus could one day be mounted on police
vehicles and driven through unruly crowds to spot individuals carrying guns,
knives and perhaps even plastic explosives.
 Engineers at the National Institute of Standards and Technology's Boulder,
Colo., office are developing the technology with funding from the National
Institute of Justice and the Federal Aviation Administration. NIST is a
non-regulatory federal agency.
 The technology is based upon a radar-like apparatus that illuminates
groups of people with low-level electromagnetic waves that penetrate
clothing but reflect off objects concealed beneath them. The reflected
energy is collected, focused onto a detector array and ultimately
transformed into an image that is displayed on a policeman's laptop, said
sources at NIST.
 However, "When does a technology-based search constitute a search for
constitutional purposes? How do you evaluate the level of intrusiveness?"
posed James Dempsey of the Center for Democracy and Technology, a
Washington-based privacy group.
 Dempsey said U.S. courts have held that airport metal detectors do not
violate the Fourth Amendment about unreasonable search and seizure in part
because such searches are overt and minimally intrusive, and because
individuals have a choice not to board an airplane.
 "In this case, your right to be in the street, and particularly your right
to protest, is more significant than the right to get on a jet plane.
Furthermore, the use of this device is not overt and there is no warning of
it. Already, there are two strikes against it," he told United Press
 "My concern is over the way we think about these technological tools,"
said Kristian Miccio, professor of law from Western State University College
of Law in Fullerton, Calif. "I fear we will put the concept of unruly crowds
and crime on the back burner while putting the technologies to enhance law
enforcement on the front burner.
 "In our fear of crime and terrorism, we are giving up so many freedoms we
haven't thought about," she continued in a telephone interview with UPI. "We
have to decide what kind of culture and society we want to live in, that is,
what are we willing to sacrifice in a war on crime."
 The system uses a high-powered, commercially available power source that
operates at 95 gigahertz in a pulsed mode. NIST engineers said that such a
power range would not impact human health or cause stoppages in pacemakers.
 "What we are doing is more along the lines of radar," said Erich Grossman,
a NIST researcher on the project. "We illuminate an area with high frequency
radiation or three-millimeter-wavelength millimeter waves. That allows us to
see details but anything finer than three millimeters we won't see."
 While millimeter waves do not penetrate deep into human tissue, the device
could conceivably detect, say, a metal plate near the surface of an
individual's skin, said Grossman. But, he said, the system produces images
of objects rather simply detecting them, which would allow officers to
discriminate between benign objects and weapons.
 Grossman said the device is more powerful than airport metal detectors.
 "That's because our system doesn't require a cooperative subject," he
said. "In other words, it's not a portal-based system where a subject has to
cooperatively walk through a particular area. That is not intent of this
 He said the device could operate in two modes. It can image an area two
meters in diameter, which could cover one or two people. If the system
detects a hotspot on a particular individual, the operator can zoom in more
 Experts said legal considerations regarding such a device are analogous to
those involved in a case currently pending before the Supreme Court.
 Police in 1992 arrested an Oregon man after authorities used a high-tech
device to sense invisible heat waves emanating from his home. Police
subsequently obtained a search warrant and found a marijuana growing
operation. The suspect, Kyllo, claimed the search violated the Fourth
Amendment prohibition against unreasonable search and seizure.
 "Like the Kyllo case, here is another technology that raises what is
currently a major issue under the Fourth Amendment," said Dempsey.
 "There are many things to consider -- such as how intrusive is this
search? Is it like taking a person's clothes off? Can the police see a
person's body or do they only get an image of the weapon? Those are factual
questions that make a difference in how it is assessed from a privacy
standpoint," he said.
 When asked if officers would be able to see a detailed image of a human
body, Grossman said that in theory engineers could incorporate a digital
camera into the device, allowing the millimeter image to be superimposed
over an optical image. Such a move would let officers see a person's body in
 "In a practical system you could certainly do that, but we are not
planning to do that with the prototype," Grossman said.
 Officials at the National Institute of Justice and the Federal Aviation
Administration said they could not provide comment by press time.
 The agencies have funded the project to the tune of $200,000 a year for
about three years, said Grossman.
Copyright 2001 by United Press International.
All rights reserved.