Risk! Dispatches from the privacy front, part 3

A "60 Minutes" report began this way:

Detection dogs that sniff for bombs and narcotics seem to be everywhere these days - at airports and courthouses, on our streets and in our schools.

There's no doubt that canines can be valuable assets for law-enforcement, but are they as reliable as we've been led to believe? Some are. And some aren't.

The report was actually concerned with the lack of training or performance standards for such dogs, but still raised, almost incidentally, some serious privacy issues.

Which brings us to the case of Lezley Whipple in Lordsburg, N.M. After her school district hired a private handler and his dog to search for drugs, she was called out of class one day because the dog had alerted on her car.

Whipple told her parents about the search of her car, and that the dog had come into the classrooms: "There would be an announcement over the intercom. And they would say, ‘We're on lockdown. Nobody's to leave the building or the room.' And the teachers would shut the door and we all had to sit in our seats. And we'd just wait there in class. Class stopped actually. And then the dog would go up and down the rows."

Whipple's parents - hooray for them - raised a stink. The principal defended the policy, proposing even to expand it to elementary level classes, on the grounds that the dog had alerted its handler to the presence of drugs 72 times. The fact that the dog turned out to be wrong 71 of those times (including in Lezley Whipple's case) was irrelevant. An ACLU suit resulted in a settlement in which the school agreed to halt the practice and pay most of the Whipple's legal costs.

But the question of whether it was legal to use the dog to sniff the students was left undecided.

The supreme court has ruled that law enforcement agents have the right to search property, like luggage and vehicles, if "a well-trained and reliable dog" indicates the presence of narcotics.

But what does "well-trained and reliable" actually mean? The supreme court didn't say.

It also doesn't deal with the slippery slope effect of allowing the practice at all. The argument here is simple: A "hit" from a "a well-trained and reliable dog" establishes probable cause for a search and therefore such searches do not violate the Fourth Amendment prohibition on "unreasonable searches and seizures."

But when you have dogs going up and down the rows in a classroom sniffing students, when you have them going through parking lots and airport terminals sniffing cars and luggage, you don't just have potential establishment of probable cause, you have law enforcement personnel actively seeking probable cause, which strikes me as something altogether different.

I'll make two points here. The first is that I doubt it would be considered "reasonable" for police, lacking reason to suspect criminal activity, to go up to a private house and peek through the windows to see if they could see anything that would establish probable cause for a search. Yet I see no difference between that and the use of drug-sniffing dogs. In each case people are being randomly targeted in what is, again, an active attempt to find grounds for a search.

Actually, I can see a difference, which is my second point: the use of dogs. The defense of the program rests largely on the claim that this is not, in fact, an active attempt to find probable cause; rather, the dogs are "passive" receptors of what's there. That is, they don't go looking for smells, they just react to those that are present.

The argument is disingenuous, of course; it's not the dogs that are active, it's the handlers guiding them around to where they hope such smells are to be found. More important, however, is that dogs are used because their sense of smell is superior to ours, particularly in discrimination - the ability to pick out a particular smell even when it's mixed with others. They are used, that is, as a tool to extend human capabilities.

But if using dogs to extend our capabilities is okay, why not technological means to the same end? Why not the thermal imaging of houses or the hand-held drug-"sniffing" wand? What about emerging technologies that can virtually "see" through walls (by detecting the minor variations in heating of those walls as heat-releasing objects - like people - move around inside them)? That can read letters through sealed envelopes (by reading slight variations in light transmission due to the ink, with a computer used to reorder the patterns into readable text)? Where do you draw the line?

While a strong case can be made for allowing dogs to sniff, for example, in airports for explosives on the grounds of immediate public safety, sniffing for other things, such as drugs, simply does not pass that test. The practice should be banned.