Pubdate: Wed, 07 Apr 2004 Source: Windsor Star (CN ON) Copyright: The Windsor Star 2004 Contact: http://www.canada.com/windsor/ Details: http://www.mapinc.org/media/501 Author: Ellen van Wageningen TOP COURT TO PONDER HIGH-TECH SNOOPING Marijuana Case Involving Kingsville Man Tests Privacy A drug case involving a Kingsville man that could restrict police use of infrared heat-sensing cameras and similar technology is to be heard by Canada's top court next week. "It's an important privacy case, in my opinion. It's not about drugs. It's about privacy," said Windsor lawyer Frank Miller, who is representing Walter Tessling in the Supreme Court case. April 16 hearing The Canadian Civil Liberties Association, which has been granted intervenor status at the April 16 hearing, agrees. "What you're dealing with is expanded technological ability to invade personal privacy," said Alan Borovoy, the association's general counsel. "With every advance we don't want to feel that people become ? more vulnerable to bypassing safeguards that our law has devised to ensure these things are handled within certain appropriate limits." That means police should get a search warrant to use infrared heat-sensing cameras to try to determine if people are growing marijuana in their homes, he said. The Ontario Court of Appeal in January 2003 acquitted Tessling of charges related to a large quantity of marijuana found in his home by police in May 1999. The court ruled the police violated his privacy rights by not getting a search warrant before using Forward Looking Infra-Red (FLIR) aerial cameras to detect heat coming from buildings on Tessling's property. The appeal court found FLIR allowed police to obtain "more information about what goes on inside a house than is detectable by normal observation or surveillance." The federal attorney general, backed by those from Ontario and Quebec, is asking the Supreme Court to overturn that ruling. "Our position is that the FLIR camera doesn't capture anything that's private, therefore it's not a search or seizure" that requires a warrant, said Jim Leising, director of federal prosecutions for Ontario. "Clearly any technological device that gives you the functional equivalent of being in the house would be governed by the warrant provisions," he said. "But this isn't a device that does anything like give you the functional equivalent of being inside. Hot spot "All it can ever tell you is that there is a spot at the exterior of your house which is hotter than any other spot on your house?. It can never tell you what the cause of the heat is." "The FLIR is a very valuable tool for law enforcement in that it allows them in many cases to confirm whether they have sufficient information or not to apply for a search warrant in (marijuana) grow house cases," he said. The intentions of police and prosecutors may be good, but they have to be weighed against the privacy rights of individuals, Borovoy said. Miller said he feels the Supreme Court's decision could apply not just to FLIR but to other cutting-edge snoop technology used by law enforcement. "I'm getting the feeling they want to initiate something that's good for now and for the future," he said. "They're going to have to make it meaningful." A growing array of devices developed for military and international intelligence purposes are being tested and used by police agencies, Miller said. If they want to use them to spy on people, they should get search warrants or go to Parliament for a change in the law, he said. - --- MAP posted-by: Jay Bergstrom