As a kid, I remember the advertisements at the back of comic books, right next to the sea monkeys, for x-ray glasses. If you believed the picture, they would allow you to oogle a young woman’s underwear right through her dress!!! Back then, seeing women’s undergarments was enough to thrill a young boy. We were so naive.
And half a century later, the New York Police Department is nearly there, making the dream come true.
Speaking at a State of the NYPD breakfast this morning, [NYPD Police Commissioner Ray] Kelly announced that the NYPD is developing a kind of infrared technology that will enable police officers to detect whether individuals are carrying guns under their clothing. Sure, it’s not as badass as shooting down a plane, but at least cops will finally be able to see what’s under our clothes without having to get out of their cars.
The mechanism, which the NYPD is developing with help from the U.S. Department of Defense, currently only works at a short range of three or four feet. But Kelly thinks they can improve it to scan citizens from a distance of up to 25 meters away. He announced this morning that the gadget will be mounted on NYPD vans with “the infrared rays shooting up the street at the person,” as the Post puts it.
No reasonable expectation of privacy here. While much of the focus on the 4th Amendment implications of technology remains on computers and shiny objects, this bit of science fantasy implicates a wide range of issue, ranging from the physiological impact of shooting “a kind of infrared technology” down city streets to cops ooglng women’s undergarments.
Interestingly, the Gothamist obtained the reaction of NYCLU Executive Director Donna Lieberman:
Like all New Yorkers, we are eager for solutions to the intractable problem of gun violence. We find this proposal both intriguing and worrisome. On the one hand, if technology like this worked as it was billed, New York City should see it’s stop-and-frisk rate drop by a half-million people a year. On the other hand, the ability to walk down the street free from a virtual police pat-down is a matter of privacy. We have no idea how this technology works, if it is effective, and what it’s error rate is. If the NYPD is moving forward with this, the public needs more information about this technology, how it works and the dangers it presents.
Not exactly a clear picture of where she stands on the future of x-ray glasses. On the bright side, we can anticipate a huge increase in applications to become New York City police officers, from all those men who still believe that sea monkeys are real and haven’t yet figured out that they can get the Victoria’s Secret catalogue in the mail.
The implications of this technology under the 4th Amendment (or Article 1, Section 12 for you New York sticklers) is a more difficult question. While it would appear that the tech runs afoul of the Supreme Court precedent, the argument that there is a right to privacy attached to walking the streets with an illegal handgun is a tough one to sell, particularly if 4th Amendment jurisprudence is really no more doctrinal than keeping the playing field tilted toward law enforcement.
As Justice Scalia noted in Kyllo,
“it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”
And this was, and remains, an astute observation.