The Bush administration wants to allow law-enforcement agencies to use military and intelligence satellites as a resource for investigations. Real-time imagery and technology than can look inside buildings and even bunkers could be used to pursue criminal investigations, a boon for law enforcement officials -- but a nightmare for civil libertarians:
The Bush administration has approved a plan to expand domestic access to some of the most powerful tools of 21st-century spycraft, giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors that can see through cloud cover and even penetrate buildings and underground bunkers.
A program approved by the Office of the Director of National Intelligence and the Department of Homeland Security will allow broader domestic use of secret overhead imagery beginning as early as this fall, with the expectation that state and local law enforcement officials will eventually be able to tap into technology once largely restricted to foreign surveillance.
Administration officials say the program will give domestic security and emergency preparedness agencies new capabilities in dealing with a range of threats, from illegal immigration and terrorism to hurricanes and forest fires. But the program, described yesterday by the Wall Street Journal, quickly provoked opposition from civil liberties advocates, who said the government is crossing a well-established line against the use of military assets in domestic law enforcement.
Although the federal government has long permitted the use of spy-satellite imagery for certain scientific functions -- such as creating topographic maps or monitoring volcanic activity -- the administration's decision would provide domestic authorities with unprecedented access to high-resolution, real-time satellite photos.
Using these satellite resources for scientific research seems unobjectionable, and some might even prefer that to their military and national security applications. It violates no one's privacy and helps advance our ability to use and conserve our natural resources, as well as prepare for potential natural disasters. That's significantly different than using satellites to peer past closed doors.
While some conservatives undoubtedly would argue that they see nothing wrong with giving law-enforcement agencies access to existing technology, others will rightly object on two grounds. First, the obvious application for the sneak-peek technology would be to avoid search warrants. If probable cause existed for a warrant, law enforcement wouldn't need the satellite technology; they'd simply enter. That's the way it's supposed to work, and has worked well for over 200 years. Civil liberty is based in part on judicial oversight of law enforcement encroachment on private property, which the sneak-peek technology would obliterate.
Second and perhaps more importantly, American legal tradition has separated military and foreign-intel collection from domestic law enforcement, and for good reasons. The Posse Comitatus Act forbids the military (except the Coast Guard, for certain purposes) from acting in a law-enforcement role, except under emergencies specifically requiring martial law. This law keeps the federal government from usurping power from local and state authorities. Since these satellites were launched with strictly military and foreign-intel missions in mind, using them as tools for law enforcement may not entirely cross the PCA, but it gets too close for comfort.
Unless the use of the satellites is strictly limited to national-security applications, such as a counterterrorist operation or immigration enforcement (both of which are legitimate national-security concerns under federal jurisdiction), satellites should not be used as law-enforcement tools. We did not put those military assets in orbit to be deployed against the people of the United States.
UPDATE AND BUMP: The decision in Kyllo appears very relevant here. Law enforcement used a thermal imaging device to determine that a defendant had a significant marijuana operation in his home. The government argued that heat escaping someone's house did not require a warrant to capture in an image. The Supreme Court differed:
While it may be difficult to refine the Katz test in some instances, in the case of the search of a home’s interior–the prototypical and hence most commonly litigated area of protected privacy–there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman v. United States, 365 U.S. 505, 512, constitutes a search–at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. Pp. 6—7.
By a 5-4 decision, which Antonin Scalia wrote and which was joined by Clarence Thomas, the Court ruled the search illegal. Given that precedent, the language in Kyllo anticipates the use of satellite technology as well, in its specific reference to "sense-enhancing technology ... not in general public use." It would require a search warrant to use -- and if law enforcement can get a search warrant, they can just search the area in the normal fashion. (h/t CQ reader Shivan M)