Apropos Orin's post, two thoughts:
(1) The argument that the police can't aim radiation surveillance devices at homes (and likely businesses, mosques, and the like) without a warrant is a nontrivial one: It's basically Kyllo v. United States (no aiming heat sensors at homes without a warrant) meets Mincey v. Arizona (no special Fourth Amendment exceptions for investigations of very serious crimes). I discuss this in this Slate piece from 2002.
My ultimate conclusion is that such radiation surveillance from outside the buildings should be constitutional, because what's an "unreasonable search" when looking for drugs (or even for evidence of murder) becomes reasonable when looking for radiation weapons: "[F]inding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons." Others have argued that it might be constitutional for another reason -- searches that are likely to reveal only evidence of contraband (which, the argument would go, includes searches for radioactive materials but not for heat sources) don't invade any reasonable expectation of privacy; I'm not as wild about that theory, but I agree with its bottom line. Nonetheless, I think the Slate piece may help explain the nature of the argument that such searches are unconstitutional.
(2) Orin points out that "In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program." I want to caution people against assuming that going onto the property under surveillance without a warrant is per se unconstitutional under existing law. There are various reasons why entering the property wouldn't itself be treated as an unconstitutional search, for instance if the parts of the property that they entered was generally open to the public, or if the property was the urban equivalent of "open fields" as opposed to the inside of someone's building (or the "curtilage" of that building).
Some of these doctrines are quite complex and unsettled, and I don't want to go into them in detail here; and I also want to stress that even if entering the property wasn't a search, doing some things on that property (perhaps including measuring radiation, or perhaps not, see item 1 above) may well be a search. But people should realize that whether "go[ing] on to the property under surveillance" is unconstitutional without a warrant is a difficult question.
Related Posts (on one page):
- The "Special Needs" Exception:
- Radiation Surveillance:
- FBI Radiation Surveillance Program:
If the search would only detect material in such quantities that they could not legally be present in a home, the cases on drug dog searches would seem to make the search OK. If the search would detect perfectly lawful activity (this was the situation in Kyllo), then under Kyllo, it would be illegal. I do not think the claim that the the searches detect only "waste" gamma rays is any more valid than the Government's argument, rejected by the Kyllo court, the infrared searches only detected "waste" heat.
Of course, a different rule might exist in exigent circumsatnces (but that does not seem to be the case here). Further, it seems to me that Kyllo does squarely apply to public buildings--religious or not--where the expectation of privacy is different.
I have no idea what the federal rules on the meaning of public access or public space.
In Kyllo, Justice Scalia refers to the Thermtron system twice (including in the holding) as "Technology not in general use," applied to gather details from the home which could otherwise not be obtained without a warrant. It makes sense if you approach the Katz test - 1) subjective expectation of privacy and 2) that XoP is one which is objectively "reasonable" (that is, the XoP is one which society is prepared to accept). I think Kyllo implicitly stands for the principle that society will always find "objectively reasonable" an expectation of privacy from technology which it is neither aware of nor fully understands. Consequently the use of such technology to constructively enter the home will always be a "search" which may then be assessed for reasonableness.
If that reading is right, the question remains whether the Court would be willing to distiguish cases based upon technology "in general use" and if so, what test or standard would they use?
In our case, we distinguished on the grounds that wireless computer networks are in general use, and members of the public who turn on such networks either know (or should) that their existence can be detected from outside the home. Certainly a similar argument exists in the "radiation detection" context - while not everybody understands how geiger counters work, it's fair to say that most folks have a general notion that radioactive materials can be detected based upon... well... the very particles that make them radioactive.
I'm not sure how far this argument would fly - I tend to err on the side of "rule it a search, then assess for reasonableness." There's also a problem to be addressed when society is aware technology exists, but not the degree to which it has been advanced by the government. Is "radiation sensing" technology in general use when everybody knows geiger counters exist, but not how sensitive or precise they are?
The problem here, is Kennedy was in the dissent in Kyllo.
So, really, his easy answer is not the "right" answer -- yet.
Also, I'm no scientist, but I think there is a significant scientific difference between radiation detection and the kind of monitoring in Kyllo. If radiation comes through the walls of a house and hits the pavement on a driveway, then would a detection device later aimed at the driveway show evidence of radiation exposure?
Except the stuff you'd need to make a dirty bomb is way, way hotter than people undergoing radiation therapy. Radiation therapy doesn't turn people into walking radiation hazards. If you're detecting cancer patients sitting at their kitchen tables when you drive by on the street, your detector is far too sensitive. In fact, I question whether it's technically feasible to detect a cancer patient with a mobile detector from 50 meters.
In Kyllo, the balanced was tipped by the danger that thermal imaging more sophisticated than that actually used in the case could reveal private but legal information. I don't see that danger here.
Life and reality in general is a never ending slippery slope; death alone provides stasis. So in terms of the law, unless the subject is archaic, highly marginal or virtually inconsequential laws, the "slippery slope" argument is little more than a tautology since every law of any consequence is an attempt to come to terms with life's slippery slopes.
"What is their major objection to getting warrants?" No probable cause so no warrant obtainable.
The problem with an "its all ok" response is it allows too much. What are the limits? Is it ok to geiger houses? Is it ok to enter a mosque after hours to geiger? If it is a "national security" exception to the 4th, what rules out a break in? If Nixon went into Watergate to geiger, with reason to believe the place had a pound of yellow cake, would that be ok?
Seems to me one must have a "reasonable suspicion" test and a requiremnt of "reasonable procedures" - sort of like urinalysis for soldiers allowed to handle nukes (done without warrants, based on reasonable suspicion, with prescribed reasonable procedures).
Breaking into a mosque to geiger may make sense and be legal in extreme circumstances, but not routinely. Risks of improper profiling based on race or religion must be considered.
More globally, why are the authorities not openly doing more to round up nukes and nuke materials in places like Russia? Hopefully they are active but covert. I am pleased to see something being done to protect against threats from nukes. I doubt that what is afoot is anywhere near enough, but who knows, the CIA has $41 billion per year and could be spending some large chunk of that making deals to obtain nukes and nuke materials (keeping them out of the hands of Iran, N Korea, OBL, etc.).
Check out this story about "the radioactive Boy Scout" who built a home-made breeder reactor in a back yard shed. The neighbors were mighty surprised when NEST teams in full moon suits started parading through everyones' yards.
http://www.qsl.net/n9zia/radio_scout
Yes, I recall that story from a few years ago. IIRC, his "experiment" was detectable with a hand-held geiger counter from half a block away. Stuff for a dirty bomb would be much more radioactive and much more concentrated. The point is, though, that you can't pick up cancer patients from half a block away using a hand-held geiger counter.
The New York City subway radiation detector pilot picked up medical doses. See, for example High Security Trips Up Some Irradiated Patients, Doctors Say (I recall the story when it was in the NY Times.)
A detector, once authorized, will be tuned to "slightly above background radiation." After all, if the bad guys have shielded their stockpile, then a detector that will detect the stockpile will also detect anything else slightly above background, like medical uses. (Or, heck, a stack of smoke detectors, which contain Americanium. EPA radiation information contains a bunch of useful information. I haven't dug into the numbers and emission rates to figure what would be detected at what levels of sensitivity.)
1. Imaging infrared requires a warrant. Waste heat argument fails. Too close to "this magic device will see right through your walls" (which IR won't, but can be used to very roughly substitute).
2. As noted above, sniffing dope on the breeze does not require a warrant. More like plain sight, or should we say, plain smell. Ditto for city code inspectors sniffing something they don't like. Or FCC radio direction finding to pin down a pirate radio transmitter.
Or might the difference here be reasonable expectation of privacy? If something smells, you shouldn't expect no one to notice it, and if you transmit, you know you can be heard.
In either event, I think geiger counters land on the permissible end of the spectrum. They don't image, just signal that gamma rays are flying around. A person with a load of radioactive waste should appreciate that it is detectable by sensors at a distance.
Sort of like seeing snowballs lofting over your fence.
Medical doses are definetely detectable, but probably not from across the street. A dirty bomb or lab may or not be either, depending on what they are using and how smart they are...
They don't use hand-held geiger counters. When you drive or walk through downtown DC, look for the little dome-shaped thingies on small pedestals on the sidewalks and street corners. Don't mess with those or you will shortly find yourself in a small room with some rather unsympathetic people.
Those thingies sent alerts about people who recently taken some radioactive iodine to determine how active their thyroid is. While they were driving down the street.
As someone said earlier in the week: For the President not to have employed radiation monitoring, given the potential downside risk, would seem to be an impeachable dereliction of duty, not the reverse.
A sniffer picks up rads. Either it's strong enough and localized enough to get a search warrant, or they need to get closer, onto the private property in question (someone else's property, you got not standing, so they say). Why not radio in for a warrant and have it faxed to the van? Otherwise, just as a practical consideration, and these are important too, you got a van full of feds in some church parking lot after hours, someone comes out, maybe weapon in hand, asking them to leave. Some of these national security types have a VERY superior attitude and feel licensed to use extreme force when challenged.
" At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI."
This is what I was referring to and what Orin mentioned in his original post. I don't think this kind of thing needs a warrant, per se, though I'm troubled that some of the monitoring involved actual trespass. But that's a different issue.
The stationary sensors must be analyzed differently. For one thing, they can pick up cancer patients but that is because the cancer patient can pass within a few meters of the sensors. I'd analyze these sensors similarly to video cameras monitoring public streets. One thing I think that undercuts a lot of Fourth Amendment problems is that, unlike the "search" of a specific building, no one knows who the passers-by are. So even if the sensors can detect radiation from a cancer patient, there's little if any privacy invasion. Also, while the sensors can detect this kind of radiation, they can also tell the difference between this and a nuclear threat. There appear to have been some difficulties with this in the early days but I haven't read of all that many radiology patients being wrestled to the ground on the National Mall lately.
Medical doses are definetely detectable, but probably not from across the street. A dirty bomb or lab may or not be either, depending on what they are using and how smart they are...
I'd disagree. If you've got enough stuff to make an effective dirty bomb it's going to be a)potent and b) a decent volume of material. It'd have to be pretty amazingly shielded to have the same radiation levels as a cancer patient. Remember, you know that a weak signal 50 meters away is a proportionally stronger signal at the source.
Second, and this is a bit technical, you can measure the decay products and they'll look different depending on what the original radioactive substance was. No need to go into much detail here but all radiation is not alike. Plutonium, for example, produces a distinct signature so if you're using a sophisticated monitoring device, you're unlikely to confuse a dirty bomb with a cancer patient.
I'm out of here now. See y'all after the holidays. Merry Christmas!
Depends on the use. When a person is irradiated (External beam radiation therapy, the most common type, or very short-term implants which are removed after minutes of treatment), he does not himself become radioactive. If he is implanted with radioactive "seeds," these are generally emitters of short-range alpha or beta particles, whose radiation is stopped by less than a centimeter of flesh. It is only in cases of injected liquid radionuclides, if they are gamma emitters, that one might emit significant amounts of radiation outside of one's body.
While you are right on most of your analysis, you make one over simplification.
If I were to make a fission device, I'd be using Plutonium or enriched Uranium. You are correct that those have different emission signatures than medical radio substances.
HOWEVER: If I were really just doing a dirty bomb, e.g. conventional explosives with a radio wrapper, then I quite possibly might use the same sorts of low grade medical radio substances (but in higher quantities) thus the shielded signature might well be similar to a cancer patient at long range.
Maybe it is Kyllo meets Mincey meets dicta in Florida v. J.L. Recall that in J.L. the court rejected a Mincey-like argument that tips about weapons possession lowered the reasonable suspicion standard because of the dangerousness of guns . . . The court noted that it did not need to reach the issue of whether such weakening of RS would be justifiable of the tip was about a bomb. . . .
(1) It is correct that different radionuclides produce different types of radiation that a sophisticated detector could distinguish.
(2) Geiger counters are non-directional. I'm long out of the business, but IIRC, it is very difficult to "image" high-energy radiation. But you don't need to.
(3) Key point: Several posters have missed an important point that causes them to think incorrectly about the problem of the nearby cancer patient and the faraway dirty bomb.
Radiation intensity I falls off as r-2. So it is true that 10kg of Bad Stuff 100m away (dirty bomb) "looks" the same as 1g of Bad Stuff 1m away (cancer patient).
But by taking two measurements at different distances from a suspected source you can distinguish between the two. [er, pause... scribble…] The absolute distance r to a source is easily determined by taking two simple "Geiger-counter" style measurements from different distances: then r=2dr/((I1/I2)-1). Given r you can determine the source's effective size. Do this twice and you can triangulate the source's precise location.
Summary: Simply walking/driving around with a simple detector you can locate a radioactive source and classify it as small or large. A slightly more sophisticated detector will tell you what the radionuclide is.
I'm thinking of this as something akin to one establishing a campsite in a wilderness area. Wouldn't one still have their 4th Amendment rights within the bounds of that campsite?
A terrorist might want to make a dirty bomb out of a material with high alpha or beta emission but low gamma emission (or, gamma emission at low enough energy that it is easily shielded with lead). Sr90, for example. These may require fairly sensitive detectors to locate, if shielded.
Secondly: all this talk about 'geiger counters' is a bit misleading. Geiger counters, while publically available and not very expensive, are also not very sensitive, particularly to gamma emissions. Scintillation detectors (which use large blocks of materials like sodium iodide, or a liquid such as naphthalene) or semiconductor detectors (large blocks of silicon or germanium, often operated at very low temperature) are far more sensitive, and also reveal the energy of the photons, from which one can deduce the composition of the emitter.
I suspect these more sophisticated sensors (and there are even more tricks that can be used, such as anticoincidence to remove cosmic ray background) would not be considered generally available, any more than a sophisticated IR sensor would be.
Gamma sensors *can* be made directional, for example by partially surrounding them with shielding, or using 'coded mask' techniques (a technique used in gamma ray telescopes in space).
"The measures we adopt today may thus be available to the government indefinitely. Imagine your least favorite president, from Nixon to Clinton, having powers like this in times of national turmoil. Police states can be built this way, and this isn't just hyperbole."
You could be this generations Madison.
However, I'm not sure why you reject the conclusion reason arrives at. If your gut and your head don't agree, doesn't the law fall on the side of your head?
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"But by taking two measurements at different distances from a suspected source you can distinguish between the two. "
Except you may not be able to distinguish between a source that is not-entirely shielded and a non-shielded but weaker source.
No, that's not true --- since it's an inverse-square law, no matter what the intensity of the source is, you can distinguish between them because you can tell what the distance is.
Consider, eg, having two detectors one meter apart. If the emitter is 1 m away from the nearer detector on the line between the two, then the intensity at the more distant detector is 1/4 that of the nearer detector, a difference of 0.75. (1/1^2 vs 1/2^2). But if the source is 10 meters away, the difference is only 21/12100ths (1/10^2 - 1/11^2) or about 0.002.
http://www.hon.ch/News/HSN/510646.html
How portable and concealable are those more sophisticated detectors? Recall that this started because the President declared that undercover entry into certain sites didn't require a warrant.
From the reports I've read, the detector is mounted in a vehicle, and the 'undercover entry' means entering the parking lot.
BTW: there is a difference between a shielded strong source and an unshielded weak source. In the former case, most of the photons detected will have been scattered (but not absorbed) in the shielding, while in the latter case more will be unscattered. This will affect the energy spectrum in a noticable way. Scintillation and (even more so) semiconductor detectors tell you how much energy each photon deposits in the detector.
Ionizing radiation, however, interacts strongly with everything, including air. A photon is emitted from the source, totally absorbed by a molecule of air, and then a portion of the energy in the molecule is radiated as a brand-new photon. (The remainder of the energy remaining to do rude things to the molecule. It's called "ionizing" radiation for a reason.) So when a homeland security scanner finds radiation coming out of thin air, does that create reasonable suspicion of a potential public hazard in progress?
Regarding the "generally available" question, an electronics hobbyist can easily throw together a scintillator detector that works reasonably well. Unlike the thermal imagers that use fancy microbolometer arrays, scintillators are embarrassingly cheap and simple. A coincidence detector to distinguish cosmic rays from terrestrial emissions is also pretty straightforward.
It is not widely known, but small quantities of radionuclides can be possessed without needing a government license. They are readily available for calibrating and testing radiation detectors. (Think about it. If you use a Geiger counter for safety work, you have to know it isn't broken.) If a guy walks by on the sidewalk and the cops detect cobalt-60 rays coming from his briefcase, they do not have proof of a crime, just a suspicion based on an unusual observation.
Well, yes and no. Since you can determine the distance from the difference in intensities between two separated detectors, you can backsolve that to figure out the source intensity. (I refuse to try to describe that in detail when I can't draw diagrams.) If you detect a couple of millicuries of 60C 4 feet away, you might not get too excited.
Again, I'm out of practice, but simply googling "scintillation detector" gets you this $7,000 Amptek device, marketed explicitly for "Homeland Security applications." Not merely a counter, it does gamma/X-ray spectroscopy, i.e. it tells you which radionuclide you're dealing with. Sweet. Sew into a jacket an Amptek + GPS + small computer + custom software, and one walker can unobtrusively map a whole neighborhood in one day without taking his hands out of his pockets. You never even need to enter a building, you never "image" anything -- but you build up a few-meters-resolution map I(x,y) of radiation patterns. Do it day after day and you get I(x,y,t). That t term is nice to have, because dI/dt tells you a lot. Example:
(We physicists may tend to overthink the problem; but this time we don't have to outsmart Mother Nature, we just have to outsmart the other guy's lawyer.)
If we're talking about a mosque-sized building, simply being able to walk up to the front door, as opposed to pulling into the parking lot, could be a useful ability given that we're dealing with an r-2 law.
That's if you're looking for a fairly "hot" source. As Paul Dietz points out, if the source is shielded, you need a more massive detector. Fine, so you're driving around in an F250 with 1000kg of NaI in the back. If you're really serious, and if your @#$%&* lawyers allow you to do imaging, again you load Son Of This Guy into a moving van or chopper.
I propose a law that reads that the President and (law enforcement officers...) shall need no prior authorization, where they have reasonable belief that radioactive, bilological, or chemical materials are in the possession or under the control of those who intend to use them to harm others, to seek out, by any means technically reliable, said materials and take control over them. The possessors or owners of the material may be entitled to just compensation in the event that a court determines, after the seizure, that the (police) were mistaken in their belief of an unlawful intended use. In neither case will the materials be reurned to the original possessor without proof presented to the determining court of their lawful and safe use.
What's yours for not getting warrants? Which is scarier: a government agency that puts a radiation detector in a van and occasionally cycles it through high-risk neighborhoods, or one which can easily get a warrant to search every house in an entire subdivision?
When there are stated threats, stated intentions to do harm, evidence of ability (9/11), how can the law enforcement model work? Society could cease to function, or be substantially impaired by some radiation bomb.
I don't know the answer, but I don't think that a strictly legalistic approach is adequate or appropriate.
And yes there is danger of overreach. As there is danger of underreach.
Derek