b'Fourth Amendment Implications of Military Use of Forward\nLooking Infrared Radars Technology for Civilian Law\nEnforcement\nForw ard L ooking In frared R adars (FL IR ) reconnaissance o f structures on private lan d s does not\nconstitute a search w ithin the m eaning o f the Fourth A m endm ent.\nD epartm ent o f D efen se personnel engaged in such surveillance would not be su b ject to liability\nfor dam ages in a constitutional tort action.\n\nMarch 4, 1992\nM\n\nem orandum\n\nD\n\nO\n\np in io n f o r t h e\n\nepartm ent o f\n\nD\n\nGeneral C\n\no u n sel\n\nefen se\n\nThis memorandum is in response to your request for further advice con\xc2\xad\ncerning the use of Forward Looking Infrared Radars (\xe2\x80\x9cFLIR\xe2\x80\x9d) technology by\nthe Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) to assist civilian law enforcement agen\xc2\xad\ncies. In a memorandum dated February 19, 1991, this Office advised that,\nunder existing statutory authority, DoD may assist civilian law enforcement\nagencies to identify or confirm suspected illegal drug production within struc\xc2\xad\ntures located on private property by conducting aerial reconnaissance that\nuses FLIR technology.1 You subsequently requested an opinion from this\nOffice on the question whether FLIR surveillance of structures on private\nproperty constitutes a \xe2\x80\x9csearch\xe2\x80\x9d within the meaning of the Fourth Amendment.2\nA memorandum that you have made available to us preliminarily concludes that\nFLIR reconnaissance of structures on private lands does constitute such a search.3\nFor the reasons set forth herein, we conclude that it does not.\n1M ilitary Use o f Infrared Radars Technology to Assist Civilan Law Enforcement Agencies, 15 Op.\nO.L.C. 36(1991).\n2Letter for J. Michael Luttig, Assistant Attorney General, Office o f Legal Counsel, from Terrence\nO \xe2\x80\x99Donnell, General Counsel, Department of Defense (Apr. 11, 1991).\n3Memorandum for Terrence O\xe2\x80\x99Donnell, Genera) Counsel, Department o f Defense, from Robert M.\nSmith, Jr. (Sept. 19, 1990) (\xe2\x80\x9cSmith Memorandum"). Other parties to examine the issue have reached\ndiffering conclusions. Compare Memorandum for Office of the Deputy C hief of Staff for Operations\nand Plans, from Patrick J. Parrish, Assistant to the General Counsel, Department of the Arm y (Sept. 17,\n1990) (FLIR surveillance is a search under Fourth Amendment) with M emorandum for Joint Chiefs o f\nStaff, from Lt. Col. C.W. Hoffman, Jr., Deputy LLC (Aug. 14, 1990) (FLIR not a search) an d M em oran\xc2\xad\ndum of Staff Judge Advocate for the Commander-in-Chief of the Pacific Command (attached to Letter\nfor J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from Terrence O \xe2\x80\x99Donnell.\nGeneral Counsel, Departm ent of Defense (Nov. 21, 1990)) (same).\n\n41\n\n\x0cL\nOur February 19 memorandum sets forth the facts relevant to FLIR tech\xc2\xad\nnology, and we briefly recount them here. FLIR is a passive technology that\ndetects infrared radiation generated by heat-emitting objects. Infrared rays\nare received by the FLIR system, electronically processed, and projected on\na screen as a visual image in the shape of the object that is emitting the heat.\nThe w anner the object, the brighter the image of the object appears. See\nU nited States v. Sanchez, 829 F.2d 757, 759 (9th Cir. 1987); United States v.\nKilgus, 571 F.2d 508, 509 (9th Cir. 1978); United States v. Penny-Feeney,\n773 F. Supp. 220 (D. Haw. 1991), a ff\xe2\x80\x99d sub nom. United States v. Feeney,\n984 F.2d (9th Cir. 1993).\nFLIR does not have the characteristics of an X-ray technology. We have\nbeen informed that it cannot provide information concerning the interior of\na container or structure. It detects only heat emanating from surfaces that\nare directly exposed to the FLIR system. Thus, for example, if there were\nheat-producing objects within a building, FLIR could detect that more infra\xc2\xad\nred radiation was being emitted from the building\xe2\x80\x99s roof than if the building\nwere empty, but the system could not identify the shapes of heat-emitting\nobjects located within the structure. Nor could the system identify the source\no f the heat or the precise location of the heat source within the structure.\nLaw enforcement agencies believe that FLIR technology can be useful in\nidentifying buildings that house marijuana crops, or methamphetamine or\nother drug processing laboratories. In particular, FLIR can aid law enforce\xc2\xad\nment officials in establishing probable cause to believe that criminal activity\nis being conducted within a particular building by determining whether the\nbuilding is radiating unusually large amounts of heat (due to the use of high\nintensity lighting or combustion generators) or unusually small amounts of\nheat (due to heavy insulation designed to mask the use of lighting or genera\xc2\xad\ntors). Recently, therefore, federal and state law enforcement agencies have\nrequested that military aircraft equipped with FLIR fly over suspect build\xc2\xad\nings on private lands and produce infrared images of those structures.4\nWe concluded in our February 19 memorandum that DoD has authority to\nprovide the requested assistance under the provisions of 10 U.S.C. \xc2\xa7\xc2\xa7 371-378,\nwhich are designed to promote cooperation between military personnel and ci\xc2\xad\nvilian law enforcement officials. We now consider whether such assistance\nconstitutes a \xe2\x80\x9csearch\xe2\x80\x9d within the meaning of the Fourth Amendment to the\nConstitution.\n4 The D epartm ent of Defense has informed us of three requests for assistance that present the question\nw hether such surveillance constitutes a Fourth Amendment search. The Drug Enforcement Adminis\xc2\xad\ntration (\xe2\x80\x9cDEA ") has asked the Army to conduct infrared imaging o f a bam on private land in which the\nDEA suspects that m arijuana is being cultivated. Second, a law enforcem ent agency has requested that\nan A rm y flight crew conduct a training mission over certain private lands and buildings in the vicinity\no f W ichita, K ansas, using an Army helicopter equipped with FLIR, to identify suspected illegal mari\xc2\xad\nju an a cultivation. Third, the DEA has asked that the Army undertake flights in OH-58D helicopters\nequipped w ith FLIR, at a height of at least 500 feet above ground, to identify dwellings and other\nstructures on private land in Arizona that the DEA suspects contain methamphetamine laboratories.\n\n42\n\n\x0cII.\nThe Fourth Amendment provides:\nThe right of the people to be secure in their persons, houses,\npapers, and effects, against unreasonable searches and seizures,\nshall not be violated, and no Warrants shall issue, but upon\nprobable cause, supported by Oath or affirmation, and particu\xc2\xad\nlarly describing the place to be searched, and the persons or\nthings to be seized.\nU.S. Const, amend. IV. Until the 1960\xe2\x80\x99s, the Supreme Court interpreted the\namendment to apply only to searches or seizures of the tangible things re\xc2\xad\nferred to in the text: \xe2\x80\x9cpersons, houses, papers, and effects.\xe2\x80\x9d In O lm stead v.\nUnited States, 277 U.S. 438, 465 (1928), overruled by Berger v. New York,\n388 U.S. 41 (1967), for example, the Court held that the interception of\ntelephone conversations by government wiretaps did not implicate the Fourth\nAmendment, reasoning that \xe2\x80\x9c[t]he language of the Amendment can not be\nextended and expanded to include telephone wires reaching to the whole\nworld from the defendant\xe2\x80\x99s house or office.\xe2\x80\x9d\nThe traditional interpretation of the Fourth Amendment was also limited\nto cases where the government committed a physical trespass to acquire\ninformation. In Olmstead, the Court noted that the wiretaps were conducted\n\xe2\x80\x9cwithout trespass upon any property of the defendants.\xe2\x80\x9d 277 U.S. at 457. In\ntwo eavesdropping cases, Goldman v. United States, 316 U.S. 129, 134-35\n(1942), overruled by Katz v. United States, 389 U.S. 347 (1967), and On Lee\nv. United States, 343 U.S. 747, 751-52 (1952), the absence of a physical\ntrespass was important to the Court\xe2\x80\x99s conclusion that no Fourth Amendment\nsearch had been conducted. Only where \xe2\x80\x9ceavesdropping was accomplished\nby means of an unauthorized physical penetration into the premises occu\xc2\xad\npied by the petitioners\xe2\x80\x9d did the Court hold that eavesdropping implicated the\nFourth Amendment. Silverman v. United States, 365 U.S. 505, 509 (1961).\nThese limitations on the scope of the Fourth Amendment were eliminated\nby the Court in a series of decisions during the 1960s. In Berger, 388 U.S.\nat 51, the Court held that \xe2\x80\x9c \xe2\x80\x98conversation\xe2\x80\x99 was within the Fourth Amendment\xe2\x80\x99s\nprotections, and that the use of electronic devices to capture it was a \xe2\x80\x98search\xe2\x80\x99\nwithin the meaning of the Amendment\xe2\x80\x9d In Katz, 389 U.S. at 353, the Court\noverruled the \xe2\x80\x9ctrespass\xe2\x80\x9d doctrine enunciated in Olmstead, and held that eaves\xc2\xad\ndropping conducted through the placement of a listening device on the outside\nof a telephone booth constituted a \xe2\x80\x9csearch and seizure\xe2\x80\x9d under the Fourth\nAmendment.\nSubsequent decisions have constructed a two-part inquiry, derived from\nJustice Harlan\xe2\x80\x99s concurring opinion in Katz, to determine whether a govern\xc2\xad\nment activity constitutes a Fourth Amendment search: \xe2\x80\x9c[F]irst, has the\n43\n\n\x0cindividual manifested a subjective expectation of privacy in the object of the\nchallenged search? Second, is society willing to recognize that expectation\nas reasonable?\xe2\x80\x9d California v. Ciraolo, 476 U.S. 207, 211 (1986). See also\nCalifornia u Greenwood, 486 U.S. 35, 39 (1988); United States v. Knotts,\n460 U.S. 276, 280-81 (1983); Smith v. M aryland, 442 U.S. 735, 740 (1979);\nK a tz , 389 U.S. at 361 (Harlan, J\xe2\x80\x9e concurring).\n\nA.\nIt will always be difficult to determine with certainty whether the owners\nor users of specific structures have subjective expectations of privacy that\nwould be infringed by the proposed aerial reconnaissance. On the face of\nthe matter, however, it seems unlikely that the owner of a structure would\nsubjectively expect that the amount of heat emitted from the roof of the\nstructure will remain private. Heat is inevitably discharged from structures\nthat contain electrical equipment such as lights or generators, and we are\ninformed by DoD that FLIR equipment has been used by law enforcement\nagencies for years to detect heat-emitting objects. Smith Memorandum at 6.\nThe only court to address the Fourth Amendment implications of FLIR con\xc2\xad\ncluded that the owners of a private residence that was monitored by FLIR\n\xe2\x80\x9cdid not manifest an actual expectation o f privacy in the heat waste since\nthey voluntarily vented it outside the garage where it could be exposed to\nthe public and in no way attempted to impede its escape or exercise domin\xc2\xad\nion over it.\xe2\x80\x9d Penny-Feeney, 773 F. Supp. at 226. Moreover, it is likely that\nmost people expect that law enforcement agencies will use information that\nis available to them for the detection of crime. Absent more detailed infor\xc2\xad\nmation about the expectations of the individuals involved, we will turn to\nthe second prong of the Fourth Amendment inquiry described by the Su\xc2\xad\npreme Court for determining whether government activity constitutes a Fourth\nAm endment search.5\n\n1.\nThe second question posed by the Supreme Court\xe2\x80\x99s analysis is whether\nFLIR surveillance, by detecting the amount of heat emitted from the exterior\no f a structure on private property, intrudes upon an expectation of privacy\nthat society is willing to recognize as reasonable. The Supreme Court has\nnot developed a clear doctrine that would indicate what is an objectively\n\n\xe2\x80\x99 The Suprem e Court has never relied solely on the first prong of its two-part inquiry to hold that a\ngovernm ent activity is not a search under the Fourth Amendment. The Court itself has suggested that\nthe \xe2\x80\x9c subjective\xe2\x80\x9d elem ent o f the inquiry m ay be an \xe2\x80\x9c inadequate index o f Fourth Amendment protection,\xe2\x80\x9d\nSm ith v. M aryland, 442 U.S. at 740 n.5, because, \xe2\x80\x9c[fjor exam ple, if the Government w ere suddenly to\nannounce on nationw ide television that all homes henceforth would be subject to warrantless entry,\nindividuals thereafter m ight not in fact entertain any actual expectation of privacy regarding their homes,\npapers, and effects." Id.\n\n44\n\n\x0creasonable expectation of privacy in a case where neither a physical trespass\ninto a home or curtilage nor a physical search of tangible objects enumer\xc2\xad\nated in the text of the Fourth Amendment is involved. In Rakas v. Illinois,\n439 U.S. 128, 144 n.12 (1978), the Court did explain that \xe2\x80\x9c[l]egitimation of\nexpectations of privacy by law must have a source outside o f the Fourth\nAmendment, either by reference to concepts of real or personal property law\nor to understandings that are recognized and permitted by society.\xe2\x80\x9d6 Sim i\xc2\xad\nlarly, in Robbins v. California, 453 U.S. 420, 428 (1981), disposition\'bverruled\non other grounds, United States v. Ross, 456 U.S. 798 (1982), a plurality of\nthe Court ventured that \xe2\x80\x9c[expectations of privacy are established by general\nsocial norms.\xe2\x80\x9d What remains unclear from these and other decisions, how\xc2\xad\never, is the m ethodology that should be employed to determ ine w hat\nexpectations o f privacy \xe2\x80\x9csociety\xe2\x80\x9d is prepared to recognize as reasonable.\nThe Fourth Amendment\xe2\x80\x99s protections are best discerned by reference to\nthe Supreme C ourt\xe2\x80\x99s prior decisions in the area. Cf. Allen v. Wright, 468\nU.S. 737, 751 (1984) (given the absence of precise definitions in standing\ndoctrine, courts may answer standing questions through comparison with\nprior cases). Applying the oft-stated principle articulated by the Court in\nKatz that \xe2\x80\x9c[w]hat a person knowingly exposes to the public, even in his own\nhome or office, is not a subject of Fourth Amendment protection,\xe2\x80\x9d Katz, 389\nU.S. at 351 (citations omitted), we conclude that the use of FLIR to conduct\naerial reconnaissance of structures is not a Fourth Amendment search.7\nThe Supreme Court has applied the \xe2\x80\x9cpublic exposure\xe2\x80\x9d rule to cases in\xc2\xad\nvolving aerial surveillance of private property.8 In Ciraolo, the Court held\nthat police officers did not conduct a Fourth Amendment search when they\ntraveled over respondent Ciraolo\xe2\x80\x99s home in a fixed-wing aircraft at an alti\xc2\xad\ntude of 1000 feet and observed, with the naked eye, marijuana plants growing\nin a garden within the curtilage of Ciraolo\xe2\x80\x99s home. Although the home and\ngarden were surrounded by double fences of six and ten feet in height, the\nCourt noted that \xe2\x80\x9c[a]ny member of the public flying in this airspace who\nglanced down could have seen everything that these officers observed.\xe2\x80\x9d 476\nU.S. at 213-14. Accordingly, the Court held that \xe2\x80\x9crespondent\xe2\x80\x99s expectation\nthat his garden was protected from such observation is unreasonable and is\nnot an expectation that society is prepared to honor.\xe2\x80\x9d Id. at 214.\nSimilarly, in Florida v. Riley, 488 U.S. 445 (1989), the Court held that\nhelicopter surveillance of the interior of a greenhouse, located within the\n\n\xe2\x80\x98 The Supreme Court has referred interchangeably to \xe2\x80\x9clegitimate" and \xe2\x80\x9creasonable\xe2\x80\x9d expectations o f\nprivacy. See Ciraolo, 476 U.S. at 220 n.4 (Powell, I., dissenting).\n\xe2\x80\x99 The District Court in Penny-Feeney, 773 F. Supp. at 226-28, relied to some extent on the \xe2\x80\x9cpublic\nexposure" doctrine to hold that FLIR surveillance of a private home did not violate a reasonable expec\xc2\xad\ntation o f privacy of the residents. Although we concur with the result in that case, we do not agree with\nall of the court\'s reasoning.\n8The Court has not equated the scope of the "public exposure\xe2\x80\x9d doctrine with subjective expectations o f\nprivacy. The Court has assumed that a person may have a subjective expectation of privacy even in that\nwhich he \xe2\x80\x9cknowingly exposes to the public." E.g., Ciraolo, 476 U.S. at 213.\n\n45\n\n\x0ccurtilage of respondent Riley\xe2\x80\x99s home, did not constitute a search under the\nFourth Amendment. Although the interior of Riley\xe2\x80\x99s greenhouse was not\nvisible from the adjoining road, the investigating officer discovered that the\nsides and roof of the greenhouse were left partially open, and that the inte\xc2\xad\nrior o f the greenhouse \xe2\x80\x94 including marijuana plants \xe2\x80\x94 could be observed\nwith the naked eye from a helicopter circling over Riley\xe2\x80\x99s property at an\naltitude o f 400 feet. A plurality of the Court, noting that \xe2\x80\x9c[a]ny member of\nthe public could legally have been flying over Riley\xe2\x80\x99s property in a helicop\xc2\xad\nter at the altitude of 400 feet and could have observed Riley\xe2\x80\x99s greenhouse,\xe2\x80\x9d\nconcluded that the case was controlled by Ciraolo. Id. at 451.\nJustice O \xe2\x80\x99Connor, concurring in Riley, also concluded that there was no\nFourth Amendment search, although she believed that \xe2\x80\x9cthere is no reason to\nassume that compliance with FAA regulations alone\xe2\x80\x9d means that the govern\xc2\xad\nment has not interfered with a reasonable expectation of privacy. Id. at 453\n(O \xe2\x80\x99Connor, J., concurring in judgment). In Justice O\xe2\x80\x99Connor\xe2\x80\x99s view, the\ncontrolling question was whether \xe2\x80\x9cthe helicopter was in the public airways\nat an altitude at which members of the public travel with sufficient regular\xc2\xad\nity that R iley\xe2\x80\x99s expectation of privacy from aerial observation was not \xe2\x80\x98one\nthat society is prepared to recognize as reasonable.\xe2\x80\x99\xe2\x80\x9d Id. at 454 (quoting\nK a tz , 389 U.S. at 361) (internal quotations omitted). Because Riley had not\nshown that air travel at an altitude of 400 feet was extraordinary, Justice\nO \xe2\x80\x99Connor concluded that the helicopter surveillance was not a \xe2\x80\x9csearch.\xe2\x80\x9d\nThe Court has also applied the \xe2\x80\x9cpublic exposure\xe2\x80\x9d doctrine to hold that an\nindividual has no reasonable expectation of privacy in garbage left at the\ncurb outside his home for pickup by trash collectors, California v. Green\xc2\xad\nw ood, in telephone numbers dialed and thus conveyed automatically to the\ntelephone company, Smith v. M aryland, or in a route traveled by an automo\xc2\xad\nbile on a public highway or the movements of objects in \xe2\x80\x9copen fields,\xe2\x80\x9d even\nwhen they are monitored surreptitiously by an electronic beeper. United\nStates v. Knotts. In each of these cases, the Court reasoned that individuals\nhad openly displayed their activities or objects to public view and therefore\nenjoyed no expectation of privacy that society is prepared to recognize as\nreasonable.\nWe believe that the use o f FLIR to observe heat emissions from the\nexterior o f structures on private property is analogous to the surveillance\nactivities undertaken by the government in the \xe2\x80\x9cpublic exposure\xe2\x80\x9d cases. As\xc2\xad\nsuming that the aerial surveillance is to take place from airspace sometimes\nused by the public \xe2\x80\x94 and we have not been provided with precise informa\xc2\xad\ntion on that issue \xe2\x80\x94 the question presented by FLIR surveillance is quite\ncom parable to those decided by the Court in Ciraolo and Riley. \xe2\x80\x9c[T]he\nhome and its curtilage are not necessarily protected from inspection that\ninvolves no physical invasion.\xe2\x80\x9d Riley, 488 U.S. at 449 (plurality opinion).\nThe owner of a structure on private property knowingly, indeed almost in\xc2\xad\nevitably, emits heat from the structure, and any member of the public flying\nover the structure could detect those heat emissions with FLIR.\n\n46\n\n\x0cWe recognize, of course, that the investigating officers in Ciraolo and\nRiley conducted their visual observations with the naked eye, while FLIR\nsurveillance employs technology to detect what an investigator could not\nobserve on his own. Decisions of the Supreme Court and courts o f appeals\nsuggest, however, that the use of technological means to gather information\nwill not amount to a Fourth Amendment search where the government does\nnot thereby observe the interior of a structure or any other \xe2\x80\x9cintimate details\xe2\x80\x9d\no f the home or curtilage. In view of the limited information disclosed by\nFLIR, we do not believe that the use of such technology in the proposed recon\xc2\xad\nnaissance missions would constitute a \xe2\x80\x9csearch\xe2\x80\x9d under the Fourth Amendment.\nAs a threshold matter, it is clear that the use of technological devices to\nacquire information that would be unattainable through the use of natural\nsenses does not necessarily implicate the Fourth Amendment. In United\nStates v. Lee, 274 U.S. 559, 563 (1927), the Supreme Court held that the use\nof a searchlight by the Coast Guard to examine a boat on the high seas did\nnot violate the Fourth Amendment. The Court explained that \xe2\x80\x9c[s]uch use of\na searchlight is comparable to the use of a marine glass or a field glass. It is\nnot prohibited by the Constitution.\xe2\x80\x9d In On Lee, 343 U.S. at 754, the Court\nsaid in dictum that \xe2\x80\x9c[t]he use of bifocals, field glasses or the telescope to\nmagnify the object of a witness\xe2\x80\x99 vision is not a forbidden search or seizure,\neven if they focus without his knowledge or consent upon what one sup\xc2\xad\nposes to be private indiscretions.\xe2\x80\x9d And in United States v. White, 401 U.S.\n745, 753 (1971), a plurality of the Court concluded that \xe2\x80\x9c[a]n electronic\nrecording will many times produce a more reliable rendition of what a de\xc2\xad\nfendant has said than will the unaided memory o f a police agent . . ., but we\nare not prepared to hold that a defendant who has no constitutional right to\nexclude the informer\xe2\x80\x99s unaided testimony nevertheless has a Fourth Amend\xc2\xad\nment privilege against a more accurate version of the events in question.\xe2\x80\x9d\nThe courts of appeals have held that the interception o f communications\nfrom radio frequencies that are accessible to the general public does not\nconstitute a Fourth Amendment search, even though radio waves cannot be\nperceived by natural senses. E.g., United States v. Rose, 669 F.2d 23, 26 (1st\nCir.), cert, denied, 459 U.S. 828 (1982); Edwards v. Bardwell, 632 F. Supp.\n584, 589 (M.D. La.), aff\'d, 808 F.2d 54 (5th Cir. 1986).\nThe Supreme Court discussed the use of sophisticated surveillance equip\xc2\xad\nment in Dow Chemical Co. v. United States, 476 U.S. 227 (1986). There,\nthe Court considered the Fourth Amendment implications of aerial surveil\xc2\xad\nlance by the Environmental Protection Agency, which made use o f precise\nphotographic equipment to observe the open areas of an industrial facility.\nIn holding that the surveillance was not a \xe2\x80\x9csearch,\xe2\x80\x9d the Court noted that the\nphotographic equipment could permit \xe2\x80\x9cidentification of objects such as wires\nas small as 1/2-inch in diameter,\xe2\x80\x9d id. at 238, and addressed the significance\nof the equipment for the Fourth Amendment:\n\n47\n\n\x0cIt may well be, as the Government concedes, that surveil\xc2\xad\nlance o f private property by using highly sophisticated\nsurveillance equipment not generally available to the public,\nsuch as satellite technology, might be constitutionally pro\xc2\xad\nscribed absent a warrant. But the photographs here are not so\nrevealing o f intimate details as to raise constitutional con\xc2\xad\ncerns. Although they undoubtedly give EPA more detailed\n\ninformation than naked-eye views, they remain limited to an\noutline of the facility\xe2\x80\x99s buildings and equipment. The mere\nfact that human vision is enhanced somewhat, at least to the\ndegree here, does not give rise to constitutional problems.\nId. (emphasis added).\n\nSo too here, FLIR does not reveal intimate details\nconcerning persons, objects, o r events within structures.\nThe C ourt\xe2\x80\x99s concern over observation of \xe2\x80\x9cintimate details\xe2\x80\x9d has been re\xc2\xad\npeated in cases involving private homes and their curtilage. In Ciraolo, for\nexample, the Court went out o f its way to note that \xe2\x80\x9c[t]he State acknowl\xc2\xad\nedges that \xe2\x80\x98[a]erial observation of curtilage may become invasive, either due\nto physical intrusiveness or through modem technology which discloses to\nthe senses those intimate associations, objects or activities otherwise imper\xc2\xad\nceptible to police or fellow citizens.\xe2\x80\x99\xe2\x80\x9d 476 U.S. at 215 n.3 (emphasis added).\nM ore significantly, the plurality in Riley, in concluding that helicopter sur\xc2\xad\nveillance of Riley\xe2\x80\x99s greenhouse did not constitute a search, found it important\nthat \xe2\x80\x9cno intimate details connected with the use of the home or curtilage\nwere observed.\xe2\x80\x9d 488 U.S. at 452.9\nThe courts of appeals that have considered the Fourth Amendment impli\xc2\xad\ncations o f magnification technology used by the government to collect\ninformation have distinguished between surveillance of the interior of a home,\nwhich has been deemed a search, and observation of the curtilage, which has\nnot. In U nited States v. Taborda, 635 F.2d 131 (2d Cir. 1980), the Second\nCircuit held that the use of a high-powered telescope to peer through the\nwindow o f an apartment was a \xe2\x80\x9csearch\xe2\x80\x9d under the Fourth Amendment. The\ncourt reasoned that \xe2\x80\x9c[t]he vice of telescopic viewing into the interior of a\nhom e is that it risks observation not only of what the householder should\nrealize might be seen by unenhanced viewing, but also o f intimate details o f\na p e rso n \xe2\x80\x99s private life, which he legitimately expects will not be observed\neither by naked eye or enhanced vision.\xe2\x80\x9d Id. at 138-39 (emphasis added).\n\n\xe2\x80\x99 Justice Brennan, in his dissent in Riley, criticized the majority on this point, suggesting that the police\nju st as easily could have observed intim ate details o f Riley\'s personal activities, although all they hap\xc2\xad\npened to observe was evidence of crime. 488 U.S. at 463 (Brennan, J., dissenting). FLIR, however, is\nincapable of revealing intim ate details. It simply provides information about surface heat, from which\ngeneral inferences som etim es can be draw n.\n\n\x0cA ccord United States v. Kim, 415 F. Supp. 1252, 1254-56 (D. Haw. 1976)\n\n(use of telescope to view inside of apartment was Fourth Am endm ent\n\xe2\x80\x9csearch\xe2\x80\x9d); State v. Ward, 617 P.2d 568, 571-73 (Haw. 1980) (use of binocu\xc2\xad\nlars to view inside of apartment was \xe2\x80\x9csearch\xe2\x80\x9d); State v. Knight, 621 P.2d\n370, 373 (Haw. 1980) (aerial observation with binoculars of inside of closed\ngreenhouse was \xe2\x80\x9csearch\xe2\x80\x9d).10\nSubsequently, however, the Second Circuit distinguished Taborda in a\ncase involving the use of binoculars and a high-powered spotting scope to\nobserve an outdoor area adjacent to a house and garage. In United States v.\nLace, 669 F.2d 46 (2d Cir.), cert, denied, 459 U.S. 854 (1982), the court\nexplained that Taborda \xe2\x80\x9cproscribed the use of a telescope by a policeman\nonly so far as it enhanced his view into the interior of a home.\xe2\x80\x9d Id. at 51.\nThe Fourth Amendment was not implicated by the use of binoculars and a\nspotting scope \xe2\x80\x9cin places where the defendant otherwise has exposed him\xc2\xad\nself to public view.\xe2\x80\x9d Id. Reflecting subsequently on Taborda and Lace, the\nSecond Circuit declared that \xe2\x80\x9cit was not the enhancement of the senses p e r\nse that was held unlawful in Taborda, but the warrantless invasion o f the\nright to privacy in the home. In contrast, the warrantless use of supplemen\xc2\xad\ntal resources including mechanical devices, such as binoculars, to observe\nactivities outside the home has been consistently approved by the courts.\xe2\x80\x9d\nUnited States v. Bonfiglio, 713 F.2d 932, 937 (2d Cir. 1983).\nThe Ninth Circuit, when considering surveillance conducted with magni\xc2\xad\nfication devices, has similarly focused on the privacy interest associated\nwith the area or activity observed, rather than on the nature of the technol\xc2\xad\nogy used. In United States v. Allen, 675 F.2d 1373 (9th Cir. 1980) (Kennedy,\nJ.), cert, denied, 454 U.S. 833 (1981), the court held that surveillance of\nprivate ranch property from a Coast Guard helicopter, by a Customs official\nusing binoculars and a telephoto lens, did not infringe upon a reasonable\nexpectation of privacy. The court emphasized that \xe2\x80\x9c[w]e are not presented\nwith an attempt to reduce, by the use of vision-enhancing devices or the\nincidence o f aerial observation, the privacy expectation associated with the\ninteriors o f residences or other structures .\xe2\x80\x9d Id. at 1380 (emphasis added).\nOther courts have approved the distinction for Fourth Amendment purposes\nbetween enhanced viewing of the interior of private structures and the en\xc2\xad\nhanced viewing of activities or objects outside such buildings. D ow Chemical\nCo. v. United States, 749 F.2d 307, 314-15 & n.2 (6th Cir. 1984), aff\'d, 476 U.S.\n227 (1986); United States v. Michael, 645 F.2d 252, 258 n.16 (5th Cir.), cert,\ndenied, 454 U.S. 950 (1981); United States v. Devorce, 526 F. Supp. 191, 201\n10 Prior to Taborda, some courts held that enhanced viewing o f the interior of certain structures on\nprivate property did not constitute a search. Fullbright v. United States, 392 F.2d 432, 434 (10ih Cir.)\n(use o f binoculars to view inside of open shed near house), cert, denied, 393 U.S. 830 (1968); People v.\nHicks, 364 N.E.2d 440, 444 (111. App. 1st Dist. 1977) (use of binoculars to view interior of residence);\nState v. Thompson, 241 N.W.2d 511, 513 (Neb. 1976) (use of binoculars to view interior o f residence\nthrough curtains); State v. Manly, 530 P.2d 306 (Wash.) (use of binoculars to view interior of apartm ent),\ncert, denied, 423 U.S. 855 (1975); Commonwealth v. Hernley, 263 A.2d 904 (Pa. Super. 1970) (use of\nbinoculars to look through window of print shop), cert denied, 401 U.S. 914 (1971).\n\n49\n\n\x0c(D. Conn. 1981). Cf. New York v. Class, 475 U.S. 106, 114 (1986) (\xe2\x80\x9cThe\nexterior of a car, of course, is thrust into the public eye, and thus to examine it\ndoes not constitute a \xe2\x80\x98search.\xe2\x80\x99\xe2\x80\x9d); Cardwell v. Lewis, 417 U.S. 583, 591 (1974)\n(plurality opinion) (taking of paint scrapings from the exterior of a vehicle left\nin a public parking lot did not infringe legitimate expectation of privacy where\n\xe2\x80\x9cnothing from the interior of the car and no personal effects, which the Fourth\nAmendment traditionally has been deemed to protect, were searched\xe2\x80\x9d).\nState and federal courts have followed a similar line of reasoning when\nconsidering the use o f light-intensifying \xe2\x80\x9cnightscopes\xe2\x80\x9d to conduct surveil\xc2\xad\nlance in the dark. In United States v. Ward, 546 F. Supp. 300, 310 (W.D.\nArk. 1982), a f f \xe2\x80\x99d in relevant p a rt, 703 F.2d 1058, 1062 (8th Cir. 1983), the\ncourt held that the use of a nightscope to observe the movements of indi\xc2\xad\nviduals outside a bam did not constitute a search, where \xe2\x80\x9c[t]he officers did\nnot \xe2\x80\x98peep\xe2\x80\x99 or peer into or through any windows or skylights,\xe2\x80\x9d or \xe2\x80\x9cobtain a\nview o f objects or persons normally physically obscured.\xe2\x80\x9d Id. at 310. In\nU nited States v. Hensel, 509 F. Supp. 1376 (D. Me. 1981), a ff\xe2\x80\x99d, 699 F.2d 18\n(1st Cir.), cert, denied, 461 U.S. 958 (1983), the court stated that the use of\nnightscopes \xe2\x80\x9ctransgresses no Fourth Amendment rights\xe2\x80\x9d where drug enforce\xc2\xad\nment agents used the scopes to observe activities on a private dock \xe2\x80\x9cbut\ncould not see into the buildings.\xe2\x80\x9d Id. at 1384 n.9. The First Circuit, al\xc2\xad\nthough not resolving the issue, subsequently characterized this conclusion as\n\xe2\x80\x9ca reasonable position to take, given the case law on the subject.\xe2\x80\x9d 699 F.2d\nat 41. The Tennessee Court of Criminal Appeals reached the same conclu\xc2\xad\nsion in State v. Cannon, 634 S.W.2d 648 (Tenn. Crim. App. 1982), noting\nthat the nightscope was used \xe2\x80\x9cto observe the traffic and activity on the\noutside o f the dwelling,\xe2\x80\x9d but that it was \xe2\x80\x9cof no value in surveying activity in\nthe interior of the house.\xe2\x80\x9d Id. at 651. See also Newberry v. State, 421 So.2d\n546, 549 (Fla. App. 1982), appeal dismissed, 426 So.2d 27 (Fla. 1983); State\nv. D enton, 387 So.2d 578, 584 (La. 1980). Like the Second Circuit in\nTaborda with respect to telescopes, the Supreme Court of Pennsylvania has\nplaced limits on the use of night vision equipment when it is used to dis\xc2\xad\ncover \xe2\x80\x9cintimate details\xe2\x80\x9d within a dwelling. In Commonwealth v. Williams,\n431 A.2d 964, 966 (Pa. 1981), the Court held that when such equipment was\nused for nine days to observe activity within private apartment, including\ntwo acts of sexual intercourse, then the surveillance constituted a \xe2\x80\x9csearch\xe2\x80\x9d\nunder the Fourth Amendment.\nFollowing the reasoning of these decisions, we do not believe that the use\nof FLIR to detect the amount of heat emanating from structures on private\nlands constitutes a Fourth Amendment search. FLIR does not permit obser\xc2\xad\nvation of the interior of homes or other structures. It cannot be used to peer\nthrough windows or skylights. It does not reveal even the shape or precise\nlocation of heat-emitting objects within a building, but shows only the amount\nof heat emitted from the exterior of a structure. When compared with the\nobservations made by investigating officers in Ciraolo and Riley (which in\xc2\xad\ncluded the interior o f Riley\xe2\x80\x99s greenhouse and the specific plants growing in\n50\n\n\x0cCiraolo\xe2\x80\x99s garden) and in Lace, Allen, and other lower court decisions (which\nincluded the movement of persons and vehicles within the curtilage o f a\nresidence), external heat emissions are not the sort of \xe2\x80\x9cintimate detail\xe2\x80\x9d likely\nto raise concerns under the public exposure cases.11\n\nIII.\nA.\nThe Smith Memorandum predicts, however, that the public exposure ra\xc2\xad\ntionale \xe2\x80\x9cis unlikely to be adopted by the courts\xe2\x80\x9d with respect to FLIR. Smith\nMemorandum at 27. In its view, the public exposure doctrine should not be\nextended to cases where the technology adds a \xe2\x80\x9csixth sense\xe2\x80\x9d to those natu\xc2\xad\nrally possessed by investigating officers. The memorandum contends that\nnightscopes and binoculars reveal activities that would have been visible to\nthe human eye absent darkness or distance, and that the electronic beeper\nemployed to monitor a vehicle on public roads in United States v. Knotts\nrevealed only activities that would have been visible to passersby. By contrast,\nthe memorandum argues, FLIR \xe2\x80\x9cpermits observation of something that pass\xc2\xad\nersby cannot perceive with their natural senses,\xe2\x80\x9d and its use is thus not likely to\nbe sanctioned under the public exposure doctrine. Smith Memorandum at 27.\nAssuming that there is a viable distinction between technologies that en\xc2\xad\nhance existing senses and those that permit \xe2\x80\x9cextra-sensory\xe2\x80\x9d perception, and\nassuming that FLIR permits government agents to observe what they could\nnot detect with their natural senses, those facts alone do not mean that the\nuse of FLIR is a \xe2\x80\x9csearch\xe2\x80\x9d under the Fourth Amendment. Federal and state\ncourts have held that the interception of radio waves \xe2\x80\x94 which themselves\ncannot be perceived by the natural senses \xe2\x80\x94 does not constitute a \xe2\x80\x9csearch.\xe2\x80\x9d\nThe United States Court of Appeals for the First Circuit, for example, con\xc2\xad\ncluded that there is no reasonable expectation of privacy in a communications\nbroadcast on a ham radio frequency, which is \xe2\x80\x9ccommonly known to be a\nmeans of communication to which large numbers of people have access as\nreceivers.\xe2\x80\x9d Rose, 669 F.2d at 26. Similarly, the Fifth Circuit summarily\naffirmed the decision of a district court which concluded that \xe2\x80\x9c[t]here is no\nreasonable expectation of privacy in a communication which is broadcast by\nradio in all directions to be overheard by countless people who have pur\xc2\xad\nchased and daily use receiving devices such as a \xe2\x80\x98bearcat\xe2\x80\x99 scanner or who\n"T h e relatively minimal information disclosed by FLIR clearly distinguishes it from X-ray-like tech\xc2\xad\nnologies, which could perm it the viewing of persons or objects through opaque structures or containers.\nAs the United States said in its brief in Dow Chemical, if \xe2\x80\x9cthe government possessed a sophisticated Xray device that enabled it to see through the walls of a house, there seems little doubt that the use o f such\na device to discover objects or activities located inside a dwelling would be subject to Fourth Am end\xc2\xad\nment regulation." B rief for the United States at 24 n.12, 476 U.S. 227 (1986) (No. 84-1259). See\nUnited States v. Haynie, 637 F.2d 227 (4th Cir. 1980) (use of X-ray machine to reveal shapes of objects\nis a Fourth Amendment search), cert, denied, 451 U.S. 972(1981); United States v. Henry, 615 F.2d 1223\n(9th cir. 1980) (same).\n\n51\n\n\x0chappen to have another mobile radio telephone tuned to the same frequency.\xe2\x80\x9d\nE dw ards v. Bardwell, 632 F. Supp. at 589. Accord Edwards u State Farm\nIns. Co., 833 F.2d 535, 538-39 (5th Cir. 1987). Three other circuits have\n\nlikewise held that there is no reasonable expectation of privacy in radio\ntelephone or cordless telephone conversations. Tyler v. Berodt, 877 F.2d\n705, 706-07 (8th Cir. 1989), cert, denied, 493 U.S. 1022 (1990); United\nStates v. H all, 488 F.2d 193, 198 (9th Cir. 1973); United States v. Hoffa, 436\nF.2d 1243, 1247 (7th Cir. 1970), cert, denied, 400 U.S. 1000 (1971).12 These\ndecisions demonstrate that the question whether the acquisition of informa\xc2\xad\ntion is a \xe2\x80\x9csearch\xe2\x80\x9d must depend on more than whether the information may\nbe perceived by the natural senses.\nIn any event, we believe it is virtually impossible to divide surveillance\ntechniques neatly between those that allow \xe2\x80\x9cextra-sensory\xe2\x80\x9d perception and\nthose that merely employ the natural senses. It is hardly clear, for example,\nthat night vision equipment, the use of which has been held not to constitute\na search, permits merely \xe2\x80\x9cenhancement o f the natural sense of sight.\xe2\x80\x9d Smith\nMemorandum at 27. One jurist to consider the question thought not, and\nobserved that a nightscope \xe2\x80\x9cnot only magnifies what the viewer could see\nwith the naked eye, but also makes possible the observation of activities\nwhich the viewer could not see because o f darkness.\xe2\x80\x9d State v. Denton, 387\nSo.2d at 584. On the other hand, the First Circuit has opined that \xe2\x80\x9c[u]se o f a\nbeeper to monitor a vehicle involves something more\xe2\x80\x9d than \xe2\x80\x9cmagnification\no f the observer\xe2\x80\x99s senses,\xe2\x80\x9d United States v. Moore, 562 F.2d 106, 112 (1st Cir.\n1977), cert, denied, 435 U.S. 926 (1978), even though the Smith Memoran\xc2\xad\ndum maintains that beeper surveillance reveals only activities that would be\nvisible to passersby, and thus is not \xe2\x80\x9cextra-sensory.\xe2\x80\x9d Smith Memorandum at\n27. In short, virtually all of the devices used by investigating officers in\nsome sense permit the collection of information that could not \xe2\x80\x9cnaturally\xe2\x80\x9d\nbe observed. The distinction between natural and \xe2\x80\x9cextra-sensory\xe2\x80\x9d observa\xc2\xad\ntions thus seems to have little analytical or constitutional significance.\nEven if that distinction were important, it is not at all clear that FLIR\nwould be categorized properly as a device that permits observations that\nhumans could not make with their natural senses. At some level, heat ema\xc2\xad\nnations can be observed through the natural sense o f sight. The naked eye\ncan perceive heat waves rising from a warm object. The relative speeds at\nwhich snow melts from the roofs of various structures can give indications\nabout the relative heat emissions from those structures. The natural senses\ncan also feel heat emanations when they are in close proximity to the human\nbody. Thus, it could be argued that FLIR merely enhances the capacity of\nthe natural senses to perceive heat.\n,2See also Slate v. Delaurier, 488 A .2d 688, 694 (R.I. 1985) (owners of cordless telephone had no\nreasonable expectation o f privacy in their conversations, which could be intercepted with standard AM/\nFM radio); State v. Howard, 679 P.2d 197, 206 (Kan. 1984) (same); People v. M edina, 234 Cal. Rptr.\n256, 262 (Cal. Ct. App.) (no reasonable expectation of privacy in message sent through pager system,\nw here conversation \xe2\x80\x9c\'could be intercepted by anyone with a radio scanner or another pager\xe2\x80\x9d), cert,\ndenied, 484 U.S. 929 (1987).\n\n52\n\n\x0cCourts generally have held that the relevant question for determining\nwhether surveillance infringes upon a legitimate expectation of privacy is\nnot merely how information is collected but what information is collected.\nIf an object of government surveillance is recognized by society as enjoying\na privacy interest of sufficient magnitude, the government\xe2\x80\x99s activity will\nconstitute a \xe2\x80\x9csearch.\xe2\x80\x9d Technology that allows the government to view the\ninterior of a home almost certainly implicates the Fourth Amendment. But\nwe are not prepared to say, as the Smith Memorandum suggests, that any\n\xe2\x80\x9cextra-sensory\xe2\x80\x9d technological development that assists authorities in ferret\xc2\xad\ning out crime is automatically one that society would deem unreasonably\nintrusive, no matter how minimal the intrusion on the privacy interests of the\ncitizenry. The Supreme Court has \xe2\x80\x9cnever equated police efficiency with\nunconstitutionality,\xe2\x80\x9d Knotts , 460 U.S. at 284, and we fear that acceptance of\nthe Smith Memorandum\xe2\x80\x99s analysis would come perilously close to doing so.\n\nB.\nMore fundamentally, the Smith Memorandum suggests that extension of\nthe public exposure doctrine to endorse the use of FLIR would threaten to\n\xe2\x80\x9crepudiate\xe2\x80\x9d Katz, because \xe2\x80\x9cany member of the public who could obtain a\nsophisticated listening device could have heard everything the police heard\xe2\x80\x9d\nin Katz. Smith Memorandum at 28. This contention does illustrate that the\npublic exposure doctrine must have limits, and it points to an internal ten\xc2\xad\nsion in the reasoning of Katz itself. It could reasonably be argued that Katz,\ngiven the availability of listening devices, knowingly exposed his conversa\xc2\xad\ntions to the public by using a public telephone booth to place his calls. It\nmay well be that the Supreme Court will eventually be forced to revisit its\nFourth Amendment jurisprudence and explain the relationship between K atz\nand the \xe2\x80\x9cpublic exposure\xe2\x80\x9d doctrine.\nIn the light of decisions subsequent to Katz, however, it appears that the\nCourt concluded that the eavesdropping in Katz was a search not simply\nbecause the FBI employed technology, but because the technology permitted\nthe interception of \xe2\x80\x9cprivate communication.\xe2\x80\x9d 389 U.S. at 352. Private com\xc2\xad\nmunications, like private papers and the interior of a home, implicate a\nprivacy interest of the highest degree. As Justice Brandeis explained in his\nprescient dissent in Olmstead, the Supreme Court has long held that private\nletters are protected by the Fourth Amendment, see Ex parte Jackson, 96\nU.S. 727 (1877), and \xe2\x80\x9c[t]here is, in essence, no difference between the sealed\nletter and the private telephone message.\xe2\x80\x9d Olm stead, 277 U.S. at 475\n(Brandeis, J., dissenting). \xe2\x80\x9cSociety\xe2\x80\x9d is plainly prepared to recognize as\nreasonable the expectation that private telephone calls will remain free from\nmonitoring by the government. Heat emissions from the exterior of a struc\xc2\xad\nture \xe2\x80\x94 providing, as they do, no precise details about a structure\xe2\x80\x99s interior\n\xe2\x80\x94 do not, in our view, enjoy a similar status.\n53\n\n\x0cc.\nThe principal case relied on by the Smith Memorandum for the conclu\xc2\xad\nsion that FLIR surveillance is a Fourth Amendment search is United States\nv. Karo, 468 U.S. 705 (1984). In Karo, drug enforcement agents installed an\nelectronic beeper in a can of ether, which they believed was to be delivered\nto buyers for use in extracting cocaine from clothing that had been imported\ninto the United States. After the ether was delivered to the buyers, who had\nno knowledge o f the presence of the beeper, the agents monitored the move\xc2\xad\nment of the can of ether within a private residence where it was stored and\nused.\nThe Court held that \xe2\x80\x9cthe monitoring of a beeper in a private residence, a\nlocation not open to visual surveillance, violates the Fourth Amendment\nrights o f those who have a justifiable interest in the privacy of the resi\xc2\xad\ndence.\xe2\x80\x9d Id. at 714. After reciting the basic rule that \xe2\x80\x9c[s]earches and seizures\ninside a home without a warrant are presumptively unreasonable absent exi\xc2\xad\ngent circumstances,\xe2\x80\x9d id. at 714-15, the Court explained that monitoring of\nthe beeper inside the private residence was the functional equivalent of a\nphysical search of the premises:\nIn this case, had a DEA agent thought it useful to enter\nthe . . . residence to verify that the ether was actually in the\nhouse and had he done so surreptitiously and without a war\xc2\xad\nrant, there is little doubt that he would have engaged in an\nunreasonable search within the meaning of the Fourth Amend\xc2\xad\nment. For purposes of the Amendment, the result is the same\nwhere, without a warrant, the Government surreptitiously em\xc2\xad\nploys an electronic device to obtain information that it could\nnot have obtained by observation from outside the curtilage of\nthe house. The beeper tells the agent that a particular article\nis actually located at a particular time in the private residence\nand is in the possession of the person or persons whose resi\xc2\xad\ndence is being watched.\nId. at 715. The Court distinguished its earlier decision in United States v.\nK notts, which held that the monitoring of a beeper on public roads was not a\nFourth Amendment search. The Karo Court concluded that although the use\n\no f a beeper inside a home is \xe2\x80\x9cless intrusive than a full-scale search,\xe2\x80\x9d it\n\xe2\x80\x9creveal [s] a critical fact about the interior of the premises that the Govern\xc2\xad\nment is extremely interested in knowing and that it could not have otherwise\nobtained without a warrant.\xe2\x80\x9d Id.\nThe Smith Memorandum states that it \xe2\x80\x9cappears likely\xe2\x80\x9d that the Supreme\nCourt would hold, primarily on the authority of Karo, that FLIR surveillance\nis a Fourth Amendment search. Smith Memorandum at 25. The Memorandum\n54\n\n\x0creasons that FLIR would enable investigators to deduce whether an object,\nsuch as a generator, is within a private structure in which there is a reason\xc2\xad\nable expectation of privacy. Accordingly, like a beeper, FLIR could permit\nthe government to leam \xe2\x80\x9ca critical fact about the interior of the premises\xe2\x80\x9d\nwithout obtaining a warrant.\nWe do not believe that Karo should be read so broadly. First, it is clear\nthat not every acquisition of information by the government from which it\ncan deduce facts about the interior of a residence or other private structure\nconstitutes a search. In California v. Greenwood, 486 U.S. 35 (1988), for\nexample, the Court held that a search of trash placed outside a home for\nremoval by the trash collector did not infringe upon a legitimate expectation\nof privacy of the homeowner. The Court reached this conclusion despite the\nfact that, as the dissent pointed out, \xe2\x80\x9ca sealed trash bag harbors telling evi\xc2\xad\ndence of the \xe2\x80\x98intimate activity associated with the sanctity of a man\xe2\x80\x99s home\nand the privacies of life.\xe2\x80\x99\xe2\x80\x9d Id. at 50 (Brennan, J., dissenting) (internal quota\xc2\xad\ntions omitted). Likewise, in Smith v. Maryland, 442 U.S. 735 (1979), the\nCourt held that the installation and use of a pen register to record telephone\nnumbers dialed by Smith was not a search, although the pen register re\xc2\xad\nvealed to police telephone numbers that Smith dialed within the privacy of\nhis own home. See id. at 743.\nMany other observations permit police to discern what might in some\ncases be \xe2\x80\x9ccritical facts\xe2\x80\x9d about the interior of a residence, although they\nalmost certainly do not constitute searches under the Fourth Amendment.\nThe sighting through a nightscope of smoke emanating from a chimney on\ntop of a house, for example, allows an inference that a fire is burning inside\nthe house. Observation through binoculars of light beams coming from a\nwindow permits the conclusion that someone (or some device) has activated\na light inside the house. Yet in light of the decisions of the Supreme Court\nin Ciraolo and Riley and of the various state and lower federal courts involv\xc2\xad\ning binoculars and nightscopes, we believe it quite unlikely that the Supreme\nCourt would hold, by analogy to Karo, that such observations of activity\nexposed to public view infringe upon Fourth Amendment rights.\nSecond, the Court in Karo rested its holding on the fact that the govern\xc2\xad\nment had \xe2\x80\x9csurreptitiously employ[ed] an electronic device to obtain\ninformation that it could not have obtained by observation from outside the\ncurtilage of the house.\xe2\x80\x9d 468 U.S. at 715 (emphasis added). By contrast, the\nowner of a structure on private property has full knowledge that heat is\nemitted from the structure and, presumably, that it can be monitored by\ninfrared radars.13 The result in Karo would likely have been different had\nthe owner of the residence knowingly placed his own beeper in the ether\n11 We are informed by DoD that \xe2\x80\x9cinfrared technology has been in use by local, state, and federal law\nenforcem ent officials for years." Smith Memorandum at 6. FLIR is mentioned in a reported court\ndecision as early as 1977, see U nited States v. P otter, 552 F.2d 901, 906 n.7 (9th Cir. 1977), and it has\nbeen discussed by several courts in the last fourteen years. The existence and usefulness o f FLIR may be\nContinued\n\n55\n\n\x0ccontainer and voluntarily conveyed the signal to anyone in the public who\nmight desire to monitor it. C f United States v. Rose, 699 F.2d at 26 (no\nreasonable expectation of privacy in communications broadcast on a ham\nradio frequency); Edwards v. Bardwell, 632 F.2d at 589.\nThe Smith Memorandum contends that \xe2\x80\x9cthe only constitutional signifi\xc2\xad\ncance of the fact in Karo that the beeper monitoring was done \xe2\x80\x98surreptitiously\xe2\x80\x99\nappears to be that it was done without the knowledge and consent of Karo\xe2\x80\x9d\nand that \xe2\x80\x9c[t]o this extent, the proposed use of FLIR is as surreptitious as was\nthe use of the beeper in Karo.\xe2\x80\x9d Smith Memorandum at 25. As noted, we\nbelieve this analysis fails to recognize the distinction between knowing and\nunknowing conveyance of information for receipt by the public. Karo did\nnot know that the beeper was emitting its signal from the interior of his\nresidence, because DEA agents surreptitiously planted the beeper in his home.\nBy contrast, the owner of a structure on private property knows that he is\nemitting heat through the roof of the structure.14\nD.\nFinally, the Smith Memorandum predicts that a court considering the use\nof FLIR over private property would invoke the Supreme Court\xe2\x80\x99s cautionary\nnote in Dow Chemical that \xe2\x80\x9csurveillance of private property by using highly\nsophisticated surveillance equipment not generally available to the public,\nsuch as satellite technology, might be constitutionally proscribed absent a\nwarrant.\xe2\x80\x9d 476 U.S. at 238. See Smith Memorandum at 27. Whatever the\nsignificance of this dictum, we do not believe it applicable to aerial recon\xc2\xad\nnaissance that makes use of FLIR. While FLIR equipment may be expensive,\nwe are informed that it is available to any member of the public who might\nwish to purchase it for use. FLIR does not, therefore, constitute \xe2\x80\x9csurveil\xc2\xad\nlance equipment not generally available to the public.\xe2\x80\x9d\nTo be sure, the proposed uses of FLIR raise difficult Fourth Amendment\nissues. FLIR enables the government to acquire information concerning\nheat emissions from private structures that has not been readily available in\nthe past. We do not believe, however, that every technological advance in\nthe service of law enforcement will inevitably infringe upon expectations of\nprivacy that society is willing to honor. FLIR collects information about\nheat that is emanating from the exterior of structures and conveyed openly\ninto the atmosphere. It does not reveal any precise or intimate details about\n15(....continued)\nknown am ong the citizenry as well, for law enforcement officials have informed DoD that individuals\nattem pting to cultivate illegal drugs \xe2\x80\x9cw ill often insulate their growing houses in an effort to preclude\ndiscovery of the intense heat generated by [the cultivation] process.\xe2\x80\x9d Smith Memorandum at 1.\n14The M em orandum also relies on a num ber of lower court decisions holding that the use o f a m agne\xc2\xad\ntom eter to detect metal on a person is a search under the Fourth Amendment. See, e.g.. U n ited States\nv. A lb a ra d o , 495 F.2d 799 (2d Cir. 1974); U nited States v. B e ll , 464 F.2d 667 (2d Cir.), cert, d e n ie d , 409\nU.S. 991 (1972); U n ite d S ta te s v. E p p erso n , 454 F.2d 769 (4th Cir.), cert, d en ied , 406 U.S. 947 (1972).\nContinued\n\n56\n\n\x0cthe interior of a structure. Any member of the public flying over a building with\nFLIR could acquire the information proposed to be collected by DoD personnel.\nIn view of these factors and the relevant court precedents, we believe that\nthe proposed use of FLIR to conduct aerial reconnaissance over structures\nlocated on private lands would not constitute a \xe2\x80\x9csearch\xe2\x80\x9d under the Fourth\nAmendment, unless travel at the altitude to be flown by the aircraft carrying\nFLIR equipment is extraordinary. We believe this caveat is necessary, be\xc2\xad\ncause Justice O\xe2\x80\x99Connor\xe2\x80\x99s concurring opinion in Florida v. Riley seemed to\nindicate that aerial surveillance from airspace that is rarely, if ever, traveled\nby the public would interfere with a reasonable expectation of privacy. 488\nU.S. at 455 (O\xe2\x80\x99Connor, J., concurring); see also United States v. Hendrickson,\n940 F.2d 320, 323 (8th Cir.), cert, denied, 502 U.S. 992 (1991). It is uncer\xc2\xad\ntain whether the Supreme Court will ultimately adopt the reasoning of the\nRiley plurality or Justice O\xe2\x80\x99Connor concurrence, but for the time being, the\nlaw is unsettled with respect to aerial surveillance conducted from airspace\nthat an individual could prove is rarely, if ever, used by the general public.\nIf DoD encounters a situation in which FLIR surveillance would be carried\nout from airspace that is rarely used by the public, we would be pleased to\nexamine that issue in more depth.\nIV.\nYou have also expressed concern that DoD personnel who conduct FLIR\nsurveillance might be subject to tort liability in an action brought under\nBivens v. Six Unknown Named Agents o f Federal Bureau o f Narcotics, 403\nU.S. 388 (1971). We do not believe that DoD personnel engaged in such\nactivity will be liable for damages. If, as we believe, FLIR surveillance\ndoes not constitute a Fourth Amendment search, there would of course be no\nconstitutional violation and no potential liability.\nEven if a court were to disagree with our conclusion and hold that FLIR\nsurveillance is a search, we do not believe that DoD personnel would be\nsubject to liability for monetary damages. Federal officers are entitled to\n\xe2\x80\x9cqualified immunity\xe2\x80\x9d from tort suits for actions taken in the course of their\nofficial duties. E.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Harlow\nv. Fitzgerald, 457 U.S. 800, 819 (1982). In Anderson v. Creighton, 483 U.S. 635\n(1987), the Supreme Court explained that an officer is entitled to such immunity\nunless he violates a constitutional right that is \xe2\x80\x9cclearly established\xe2\x80\x9d at the time\n14(....continued)\nS e e Smith M emorandum at 14 & n.33. These decisions contain little or no analysis o f the question\n\nwhether use o f such a device is a Fourth Amendment search, and we agree with DoD that \xe2\x80\x9cwe cannot be\ncertain that the [Supreme] Court would agree their use is a search or that it would apply the same\nanalysis to use o f FLIR.\xe2\x80\x9d Id. In any event, the use of a magnetometer is distinguishable from FLIR in\nat least one crucial respect. The magnetometer cases do not fall within the public exposure doctrine,\nbecause it is not true that \xe2\x80\x9cany member o f the public\xe2\x80\x9d could learn what the governm ent discovers\nthrough a magnetometer. The government is able to make use of a magnetometer only because it can\nrequire individuals to pass through the mechanism in order to travel on airplanes. S e e A lb a ra d o , 495\nF.2d at 806-07.\n\n57\n\n\x0cof the officer\xe2\x80\x99s action. The right must be \xe2\x80\x9cclearly established\xe2\x80\x9d in this particular\xc2\xad\nized sense: \xe2\x80\x9cThe contours of the right must be sufficiently clear that a reasonable\nofficial would understand that what he is doing violates that right.\xe2\x80\x9d Id. at 640.\nGiven the uncertainty surrounding what expectations of privacy \xe2\x80\x9csociety\nis prepared to recognize as reasonable,\xe2\x80\x9d we do not believe that the use of\nFLIR from airspace that is used by the general public \xe2\x80\x94 even if ultimately\nheld to be a Fourth Amendment search \xe2\x80\x94 would violate a \xe2\x80\x9cclearly estab\xc2\xad\nlished\xe2\x80\x9d constitutional right of the owners of structures on private lands. As\nour legal analysis (and the difference of opinion among those to have exam\xc2\xad\nined the issue) shows, a reasonable officer certainly could believe that the\nuse of FLIR to conduct aerial reconnaissance of private structures is lawful.\nAccordingly, we do not think that DoD personnel providing that type of\nassistance to civilian law enforcement agencies would be subject to liability\nfor damages in a constitutional tort action.\nTIMOTHY E. FLANIGAN\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n58\n\n\x0c'


b"July 22, 1977\n\n78-80\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nFederal Election Commission\xe2\x80\x94Appointment of\nMembers (2 U.S.C. \xc2\xa7 437)\n\nThis is in response to your memorandum seeking an interpretation of 2\nU .S.C . \xc2\xa7 437(c)(3), which provides that members of the Federal Election\nCommission\xe2\x80\x94\n. . . shall be chosen from among individuals who, at the time o f their\nappointment, are not elected or appointed officers or exployees in the\nexecutive, legislative, or judicial branch of the Government of the\nUnited States. Members of the Commission shall not engage in any\nother business, vocation, or employment . . . .\nYou specifically inquire, first, whether the statute permits appointment o f an\nindividual who had resigned from Federal service immediately prior to his\n\xe2\x80\x9c appointm ent,\xe2\x80\x9d and, second, if the answer to that question is in the affirmative,\nwhether the \xe2\x80\x9c appointm ent\xe2\x80\x9d is deemed to occur upon nomination, the execution\no f the commission, or the taking of the oath of office.\nFirst. It is our view that the purpose o f the statute is satisfied if the member\nof the Commission resigns his Federal position immediately prior to his\nappointment. The purpose o f the provision is to insure that the members of the\nCommission serve on a full-time basis. M oreover, if Congress insists on more\nthan an \xe2\x80\x9c immediate break\xe2\x80\x9d in government service prior to the appointment to a\nposition, it uses the formula that he be \xe2\x80\x9c appointed from civilian life.\xe2\x80\x9d See, e .g .,\n10 U.S.C. \xc2\xa7\xc2\xa7 133-137. That clause has been interpreted as requiring that the\nappointee has not only ceased to engage in Government service but also has\nentered civil life and civil pursuits. See 36 Op. A .G . 389, 402 (1930), and\nG uilmette v. U nited States, 49 Ct. Cl. 188 (1914).\nSecond. Having concluded that the resignation may take place immediately\nprior to the \xe2\x80\x9c appointm ent\xe2\x80\x9d to the Com m ission, we turn to the question as to\nwhat constitutes \xe2\x80\x9c appointm ent\xe2\x80\x9d within the meaning of the statute. Construing\nArticle II, Section 2, Clause 2, o f the Constitution, the Supreme Court has held\nthat the appointment process consists of three steps: nomination, advice and\nconsent o f the Senate, and appointment itself, which is usually evidenced by\nthe execution of the commission by the President. See, M arbury v. M adison, 5\nCranch 137, 155 (1803). In our view, the statute uses the term \xe2\x80\x9c appointm ent\xe2\x80\x9d\n359\n\n\x0cin the same sense as does the Constitution; hence, a prospective member of the\nCommission must have resigned from his Federal position by the time the Presi\xc2\xad\ndent formally appoints him to the Commission by executing his commission.\nWe note that in at least one situation, the interpretation of Article I, Section\n6, Clause 2 ,1 an Attorney General took the position that a person who is\ndisqualified from holding a civil office may not be nominated to it, even though\nthe disqualification would be lifted by the time of the actual appointment by the\nPresident. 17 Op. A .G . 522 (1883).2 We believe, however, that this interpreta\xc2\xad\ntion of the term \xe2\x80\x9c appointm ent\xe2\x80\x9d is based on the need to avoid an evasion of the\npurpose o f Clause 2. The aim o f that constitutional provision is that, where\nCongress creates new offices or increases the emoluments of existing ones, mem\xc2\xad\nbers o f that Congress should not be appointed to those offices during the terms\nfor which they were elected. The constitutional purpose could be seriously eroded\nif a disqualified member o f Congress could be nominated and confirmed during\nthe period of his disqualification\xe2\x80\x94 in particular by the same Senate that partici\xc2\xad\npated in the creation o f the office involved or increased its emoluments\xe2\x80\x94 and thus\nbe virtually assured o f the appointment as soon as the disqualification ended.\nThe purpose o f \xc2\xa7 437(c)(3), however, is not to disqualify persons because of\ntheir past status as Federal officers, but merely to prevent them from serving in\nthat capacity while they are on the Com m ission. This statutory intent does not\nrequire that the prospective appointee resign his Federal office prior to\nnomination, at which time he cannot know whether he will be confirmed. We\nregard it as sufficient for the resignation to occur prior to the execution o f the\ncommission. This reading o f the statute is supported by the Conference Report\non the Federal Election Campaign Act Amendments of 1974, H. Rept.\n93-1438, 93rd C ong., 2d sess. 90 (1974), which states:\n[N]o member may be appointed to the Commission who at the time of\ntaking office as such a m em ber is an elected or appointed official of\nany branch o f the United States Government.\nIt should be observed that the report uses the nontechnical, loose term \xe2\x80\x9c at the\ntime of taking office,\xe2\x80\x9d which perhaps could be interpreted as the time when the\nappointee enters into office. In our view, this language of the report does not\nalter the meaning o f the statutory term \xe2\x80\x9c appointm ent.\xe2\x80\x9d\nFinally, we assume that the appointment in question concerns an individual\nwho is not subject to the disqualification imposed by Article I, Section 6,\nClause 2 o f the Constitution.\nJo h n M . H\n\narm on\n\nA ssistan t A ttorn ey G eneral\nOffice o f L egal Counsel\n'T hat clause prohibits the appointm ent o f a Senator or Representative to any civil office, if the\noffice was created or its em olum ents were increased during the tim e for which the Senator or\nRepresentative w as elected.\n2The A ttorneys General still adhere to that interpretation o f this particular constitutional\nprovision.\n\n360\n\n\x0c"


b"Designation of Interpol as a\nPublic International Organization Under the\nInternational Organizations Immunities Act\nThe International Criminal Police Organization, INTERPOL, qualifies for designation by the\nPresident as a \xe2\x80\x9cpublic international organization\xe2\x80\x9d under the International Organizations\nImmunities Act, 22 U.S.C. \xc2\xa7 288 (IOIA), entitled to enjoy certain privileges, exemptions, and\nimmunities under United States law. INTERPOL is composed exclusively o f states as mem\xc2\xad\nbers and the United States participates in INTERPOL pursuant to statutory authority.\nStatutory protection is lim ited to international organizations that can demonstrate a particular\xc2\xad\nized need for such protection. INTERPOL\xe2\x80\x99S contacts with the United States are sufficient to\ndem onstrate a need for protection, notwithstanding its lack of an office and permanent staff in\nthe United States. Because INTERPOL does not have an office or staff in the United States,\nhowever, several of the specific privileges, exem ptions and immunities available under the\nIOIA may be inapplicable. In an executive order designating INTERPOL as a public interna\xc2\xad\ntional organization, the President could limit the privileges, exemptions, and immunities\naccorded to INTERPOL to those necessary to carry out its essential functions in the United\nStates.\n\nJanuary 12, 1983\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nU n it e d S t a t e s N\n\na t io n a l\n\nC h ie f , In t e r p o l\n\nC en tra l B ureau\n\nThis responds to your request for our opinion whether the International\nCriminal Police Organization (INTERPOL) qualifies for designation as a \xe2\x80\x9cpublic\ninternational organization\xe2\x80\x9d under the International Organizations Immunities\nAct, 22 U.S.C. \xc2\xa7 288 (IOIA or Act). The IOIA provides certain privileges,\nexemptions, and immunities under United States law to eligible public interna\xc2\xad\ntional organizations designated by executive order. For the reasons set forth\nbelow, we conclude that INTERPOL meets the threshold legal requirements\nfor designation under the IOIA. The most important immunity available to\nINTERPOL by virtue of such designation would be immunity of INTERPOL\nand its officers, employees, and representatives from suit or legal process with\nrespect to acts performed within the scope of the functions of INTERPOL.\nBecause INTERPOL does not maintain any office or permanent staff in the\nUnited States, many of the other privileges, exemptions, and immunities af\xc2\xad\nforded by the IOIA may be irrelevant or unnecessary to protect the functioning\nof INTERPOL in the United States. We suggest, therefore, that the privileges,\nexemptions, and immunities available under the Act could be limited by\n1\n\n\x0cexecutive order to those necessary for INTERPOL to carry out its essential\nfunction, i.e., the coordination and exchange of police information among its\nmember states.\nAt the outset, we note that our advice here is limited to the threshold legal\nconsiderations raised by the possible designation of INTERPOL under the\nIOIA. INTERPOL has not yet applied for designation, although we understand\nan application will be filed with the Department of State in the near future. We\ntherefore cannot comment specifically on the details of the designation. This\nOffice will, of course, review for form and legality the draft executive order\ndesignating INTERPOL, if the decision is made to proceed. We also do not\naddress policy questions raised by INTERPOL\xe2\x80\x99s possible designation under\nthe IOIA. You may wish to pursue those questions through appropriate chan\xc2\xad\nnels within this Department, the State Department, and the White House.\nI. Background\nThe IOIA authorizes the President to designate \xe2\x80\x9cpublic international organi\xc2\xad\nzations\xe2\x80\x9d in which the United States participates as being entitled to enjoy\ncertain privileges, exemptions, and immunities under United States law. 22\nU.S.C. 288. These privileges, exemptions, and immunities include: (1) the\ncapacity to contract, to acquire and dispose of real and personal property, and\nto institute legal proceedings; (2) immunity from suit and legal process for the\norganization; (3) immunity of the organization\xe2\x80\x99s property and assets from\nsearch and confiscation, and inviolability of its archives; (4) exemption from\ncustoms duties and internal revenue taxes on goods imported by the organiza\xc2\xad\ntion, exemption from registration requirements for foreign agents, and inviola\xc2\xad\nbility of official communications; and (5) exemption from property taxes. Id.\n\xc2\xa7\xc2\xa7 288a(a)-(d), 288c. The Act also provides certain immunities and exemp\xc2\xad\ntions for officers and employees of the organization and for foreign representa\xc2\xad\ntives to the organization including, most importantly, immunity from suit and\nlegal process with respect to \xe2\x80\x9cacts performed by them in their official capacity\nand falling within their functions.\xe2\x80\x9d Id. \xc2\xa7 288d(b).' Section 288 authorizes the\nPresident to withhold, withdraw or condition any of the specific privileges,\nexemptions, and immunities \xe2\x80\x9cin light of the functions performed by the organi\xc2\xad\nzation,\xe2\x80\x9d and to revoke the designation if the organization or its officers or\nemployees abuse those privileges, exemptions, and immunities.\nINTERPOL has not previously sought designation as an international orga\xc2\xad\nnization under the IOIA, even though the organization has existed since 1923\n1 T he A ct also provides fo r exemptions fro m custom s duties and internal revenue taxes on baggage and\neffects o f the o rg an izatio n \xe2\x80\x99s officers, em ployees and representatives, and their fam ilies and households, id.\n\xc2\xa7 288b, and exem ptions for such individuals from laws regulating entry into or departure from the United\nStates, alien registration and fingerprinting requirem ents, and requirem ents for registration as foreign agents.\nId. \xc2\xa7 288d(a). U nlike the im m unity from suit an d legal process afforded by \xc2\xa7 288d(b), which is available to\ncitizen s o f the U nited States w ho serve as o fficers or em ployees o f the organization, the exem ptions provided\nby \xc2\xa7\xc2\xa7 288b an d 288d(a) are not available for U nited States citizens.\n\n2\n\n\x0cand, since 1938, the United States has participated on a formal or informal\nbasis pursuant to the authority provided to the Attorney General in 22 U.S.C.\n\xc2\xa7 263a.2 We understand the Secretary General of INTERPOL has decided to\nseek designation under the IOIA primarily because of the recent decision by the\nUnited States Court of Appeals for the District of Columbia in Steinberg v.\nInternational Criminal Police Organization, 672 F.2d 927 (D.C. Cir. 1981). In\nthat decision the court ruled that in personam jurisdiction exists over INTERPOL\nunder \xc2\xa7 13423(a)(4) of the District of Columbia\xe2\x80\x99s long arm statute, which\nauthorizes the exercise of personal jurisdiction over a nonresident \xe2\x80\x9cwho caus[es]\ntortious injury in the District of Columbia by an act or omission outside the\nDistrict\xe2\x80\x9d if the nonresident \xe2\x80\x9cregularly does or solicits business, engages in any\nother persistent course of conduct, or derives substantial revenue from goods\nused or consumed or services rendered in the District of Columbia.\xe2\x80\x9d 672 F.2d\nat 930. We also understand that an additional consideration relevant to the\nSecretary General\xe2\x80\x99s decision is the negotiation by INTERPOL and the French\nGovernment of a new Headquarters Agreement, which will provide INTERPOL\nwith expanded privileges and immunities under French law.3 INTERPOL\nanticipates that the new Headquarters Agreement could serve as a model for\nsimilar grants of privileges and immunities in other countries, by agreement or\nby statute, if it becomes advisable or necessary to seek such protections.\nII. Analysis\nThe threshold issue is whether INTERPOL qualifies for designation by the\nPresident under the IOIA. To qualify for designation, the organization must be\na \xe2\x80\x9cpublic international organization,\xe2\x80\x9d i.e., it must be \xe2\x80\x9ccomposed of govern\xc2\xad\nments as members.\xe2\x80\x9d See H.R. Rep. No. 1203, 79th Cong., 1st Sess. (House\nReport). The United States must participate in the organization pursuant to\ntreaty or \xe2\x80\x9cunder the authority of any Act of Congress authorizing such partici\xc2\xad\npation or making an appropriation for such participation.\xe2\x80\x9d 22 U.S.C. \xc2\xa7 288.\nAlthough the statute itself does not impose any requirement that the organiza\xc2\xad\ntion have particular contacts with the United States, the House Report notes,\n2 22 U.S.C. \xc2\xa7 263a authorizes the Attorney General \xe2\x80\x9cto accept and m aintain, on behalf of the U nited States,\nm em bership in the International Criminal Police O rganization.\xe2\x80\x9d The purposes o f INTERPOL, as set forth in\nits C onstitution, are:\n(a) To ensure and prom ote the w idest possible mutual assistance between all crim inal police\nauthorities within the lim its o f the laws existing in the different countries and in the spirit o f the\n\xe2\x80\x9cU niversal D eclaration o f Human R ights;\xe2\x80\x9d [and]\n(b) To establish and develop all institutions likely to contribute effectively to the prevention\nand suppression o f ordinary law crim es.\nConstitution o f the International Criminal Police Organization, Art. 2. The primary function o f INTERPOL is to\ncoordinate the exchange o f information relating to crimes and criminal investigations and of certain humanitarian\ninformation among the member states, each o f which is represented by a designated national central bureau.\n3 You have inform ed us that the H eadquarters A greem ent and the Exchange o f Letters were approved by the\nIN TERPO L General Assem bly at its annual meeting in O ctober 1982, and have been signed by the President\no f IN TERPO L and by a representative o f the G overnm ent o f France. The one rem aining step is subm ission o f\nthe A greem ent and Exchange o f Letters to the French Parliam ent for ratification, which we understand will\ntake place this spring.\n\n3\n\n\x0c\xe2\x80\x9cas a practical matter, the bill will not be applicable to public international\norganizations to which the United States does belong but which do business\nentirely outside of the United States and which will therefore have no need for\nprotection under the legislation.\xe2\x80\x9d House Report, supra, at 1-2.\nUnder Executive Order No. 9698, 3 C.F.R. 508 (1946), the Secretary of State\nis charged with reviewing applications and proposing organizations to be\ndesignated pursuant to the Act. The Department of State, elaborating on the\nsubstantive criteria for eligibility under the Act, has established the following\nthreshold requirements:\n(1) The applicant organization, and its officers and employ\xc2\xad\nees, must be doing sufficient business in the United States to\nwarrant granting them the privileges of the legislation, and their\nactivities must be such as reasonably to require the said privi\xc2\xad\nleges. In general, this will mean that the organization must have\nan office and staff located within the United States.\n(2) The Government of the United States must be a participat\xc2\xad\ning member of the applicant organization.\n(3) The participation of the Government of the United States\nmust be pursuant to a treaty or under the authority of an Act of\nCongress authorizing such participation or making an appro\xc2\xad\npriation for such participation.\n(4) The applicant organization must be composed principally\nof governments, as distinguished from private organizations, as\nmembers.\n(5) The applicant organization must not be scheduled for\nliquidation in the immediate future.\nBulletin of the Department of State, No. 128 (Feb. 20,1946) (State Department\nBulletin). We believe INTERPOL satisfies the threshold legal requirements for\ndesignation under \xc2\xa7 288 and the State Department\xe2\x80\x99s guidelines. First, although\nthere has been some confusion in the past about characterization of INTERPOL\nas a \xe2\x80\x9cpublic\xe2\x80\x9d or \xe2\x80\x9cprivate\xe2\x80\x9d organization, we are satisfied that INTERPOL would\nbe considered a \xe2\x80\x9cpublic international organization\xe2\x80\x9d for the purposes of the\nIOIA.4 INTERPOL is composed exclusively of states as members; each na\xc2\xad\ntional central bureau responsible for liaison with INTERPOL\xe2\x80\x99s General Secre\xc2\xad\ntariat is an official law enforcement agency within its country\xe2\x80\x99s government;\nand INTERPOL\xe2\x80\x99s officers and Executive Committee members are elected by\ngovernment officials from all member states. Second, although INTERPOL\nwas not set up by treaty, convention, or executive agreement, the United States\nparticipates in INTERPOL pursuant to specific statutory authority. See 22\n4 A 1976 C o m p tro ller G e n eral's Report on th e U nited S tates' participation in INTERPOL noted, \xe2\x80\x9cvarious\nterm s have b een used to d escribe INTERPOL\xe2\x80\x99s status. The U nited N ations, the General Secretariat, and U.S.\nT reasury o fficials refer to it as intergovernm ental; others call it a private or nongovernm ental organization,\nand m any perceive it as an organization in the m old o f a U nited N ations.\xe2\x80\x9d Report o f the C om ptroller G eneral\no f the U nited S tates, \xe2\x80\x9c U nited S tates Participation in IN TERPOL, T he International Criminal Police O rganiza\xc2\xad\ntion\xe2\x80\x9d 25 (D ec. 27, 1976).\n\n4\n\n\x0cU.S.C. \xc2\xa7 263a.5 Moreover, Congress has repeatedly authorized and appropri\xc2\xad\nated funds for payment by the United States of dues to INTERPOL.6 The only\nquestion that gives us some pause is whether the lack of any office or perma\xc2\xad\nnent staff in the United States precludes INTERPOL, as a matter of law, from\neligibility for designation under the IOIA. The legislative history of the Act and\nthe implementing State Department Bulletin suggest the statute is intended\nprimarily to meet the needs of international organizations that have offices and\nstaff in the United States. We have been told informally by the State Depart\xc2\xad\nment that all of the organizations that have been designated under the IOIA to\ndate have some permanent facilities and/or staff in the United States.7 To our\nknowledge, however, no organization has requested and been denied designa\xc2\xad\ntion on the ground that the statute applies only to organizations with offices or\nstaff in the United States.\nWe do not believe the IOIA requires that an international organization\nseeking designation have offices, facilities, or permanent staff in the United\nStates. The focus of the Act, as reflected in the Department of State\xe2\x80\x99s guide\xc2\xad\nlines, is on the need of the international organization for the particular privi\xc2\xad\nleges, exemptions, and immunities provided by the Act, in order to carry out\nthe organization\xe2\x80\x99s legitimate functions. Although the House Report recognizes\nthat \xe2\x80\x9cas a practical matter\xe2\x80\x9d the statute would not apply to organizations that do\nbusiness entirely outside of the United States, it does not suggest that an\norganization must have offices or staff in the United States in order to have\nsufficient contacts to warrant the protection of the Act. See House Report,\nsupra, at 1. Similarly, the statement in the State Department Bulletin that \xe2\x80\x9cin\ngeneral\xe2\x80\x9d an organization must have an office and staff in the United States is\nonly an elaboration on the requirement that the organization \xe2\x80\x9cbe doing suffi\xc2\xad\ncient business in the United States to warrant granting them the privileges of\nthe legislation, and their activities must be such as reasonably to require the\nsaid privileges.\xe2\x80\x9d Thus, the State Department Bulletin does not rule out the\npossibility that an organization with no office or staff located within the United\n5 The prim ary constitutive docum ent ofJN T E R P O L is its C onstitution. The currently effective C onstitution\nwas adopted by the INTERPOL General Assem bly in 1956. It provides that all countries then participating in\nthe organization w ere deem ed to be m embers unless they declared w ithin six months o f the effective date of\nthe C onstitution that they w ould not accept the C onstitution. The U nited States has never subm itted a\ndeclaration o f non-acceptance.\n6 The current version o f \xc2\xa7 263a provides that dues and expenses for the m embership o f the United States in\nINTERPOL \xe2\x80\x9cshall be paid out o f sums authorized and appropriated for the Department o f Justice.*\xe2\x80\x99 Pub. L.\nNo. 95-624, \xc2\xa7 21(a), 92 Stat. 3459, 3466 (1978).\n7 A wide variety o f organizations, with differing structures, m em bership requirem ents, and functions, has\nbeen granted designation under the IOIA. These include, for exam ple, the African D evelopm ent Fund, the\nFood and A griculture O rganization, the G reat Lakes Fishery C om m ission, the Inter-A m erican T ropical Tuna\nCommission, the International Bank for Reconstruction and D evelopm ent, the International Coffee O rganiza\xc2\xad\ntion, the International Cotton Advisory C om m ittee, the International M aritim e S atellite O rganization, the\nInternational Pacific Halibut C om m ission, the International Telecom m unications U nion, the International\nW heat Advisory Committee, the O rganization o f African Unity, the O rganization o f A merican States, the\nU nited Nations, the W orld Health O rganization, and the W orld M eteorological O rganization. M ost recently,\nthe President has designated the M ultinational Force and O bservers and the International Food Policy\nResearch Institute as public international organizations for purposes o f the IOIA. See Exec. Order N o. 12359,\n3 C.F.R. 180(1982).\n\n5\n\n\x0cStates may nonetheless be able to demonstrate a nexus with the United States\nthat creates a reasonable need and basis for receipt of the privileges, exemp\xc2\xad\ntions, and immunities provided by the Act.\nTherefore, we believe the lack of an office and permanent staff in the United\nStates does not make INTERPOL ineligible as a matter of law for designation\nunder the IOIA. The clear legislative intent of the statute, however, is to limit\nthe protection afforded by the Act to international organizations that can\ndemonstrate a particularized need for such protection. We thus must consider\nwhether the contacts INTERPOL has with the United States, which consist\nprimarily of frequent communications by radio, teletype, and mail to the\nUSNCB and occasional visits by INTERPOL officials or employees to consult\nwith appropriate U.S. law enforcement personnel, provide a sufficient nexus to\ntrigger designation under the IOIA.\nWe believe INTERPOL\xe2\x80\x99s contacts are sufficient, particularly in light of the\nSteinberg decision, to satisfy the threshold legal requirements for designation\nunder the IOIA. The essential function of INTERPOL and its primary useful\xc2\xad\nness to United States law enforcement efforts lie in the exchange of informa\xc2\xad\ntion with the national central bureaus, including the USNCB. The ruling in the\nSteinberg case potentially exposes INTERPOL to suit in the United States, at\nleast within the District of Columbia, for performance of that function.8It is not\nclear at this time how substantial that exposure is, or how the risk of suit will\naffect INTERPOL\xe2\x80\x99s ability or willingness to continue the exchange of informa\xc2\xad\ntion with the USNCB.9 We are satisfied nonetheless that the Steinberg ruling\ndemonstrates INTERPOL\xe2\x80\x99s need for at least some of the protections afforded\nby designation under the IOIA, and therefore we conclude INTERPOL would\nsatisfy the minimum threshold legal requirements for such designation.\nYou have also asked us to consider whether the privileges, exemptions and\nimmunities available to INTERPOL under the IOIA should be limited or\nconditioned, if a decision is made to grant INTERPOL designation as a public\ninternational organization. That decision rests ultimately on policy consider\xc2\xad\nations that are not appropriately addressed by this Office. As a matter of legal\nanalysis, however, we note that \xc2\xa7 288 gives the President the authority to place\nconditions or limitations on the available privileges, exemptions, and immuni\xc2\xad\nties, \xe2\x80\x9cin light of the functions performed by the organization.\xe2\x80\x9d Although we do\nnot interpret this language to impose any mandatory obligation upon the\nPresident to limit the designation of organizations in any specific manner, we\nbelieve it would be appropriate in light of INTERPOL\xe2\x80\x99s specific and somewhat\nlimited need for immunity for the President to limit the privileges, exemptions,\nand immunities accorded to INTERPOL to those that are necessary to preserve\nand protect the functions performed by INTERPOL in the United States.\n8 In practical term s, suits in the District of C o lu m b ia would be IN TER PO L\xe2\x80\x99s prim ary concern, since most of\nthe inform ation transm itted to the United S tates by IN TERPO L is sent to the USNCB in the District of\nC olum bia. C onsequently, m ost plaintiffs alleg in g injury from such transm issions could probably establish\nju risd ictio n and venue w ithin the District.\n9 It is certainly relevant that the Secretary G eneral o f IN TERPO L deems the Steinberg ruling of sufficient\nconcern to w arrant application for designation un d er \xc2\xa7 288 o f the IOIA.\n\n6\n\n\x0cBecause INTERPOL does not have an office or staff in the United States,\nand therefore has no property, assets, archives, or permanent employees lo\xc2\xad\ncated in the United States, several of the specific privileges, exemptions, and\nimmunities available under the IOIA may be inapplicable or irrelevant to\nINTERPOL.10 These include the following:\n(1) capacity to acquire and dispose of real and personal prop\xc2\xad\nerty;11\n(2) immunity of property and assets from search and inviola\xc2\xad\nbility of archives;12\n(3) exemptions from customs duties and internal revenue\ntaxes with respect to goods or articles imported into the United\nStates by the organization;13 and\n(4) immunity of the organization from property taxes.14\nSeveral other privileges, exemptions and immunities specified in the IOIA\ncould, however, be considered critical to preservation of INTERPOL\xe2\x80\x99s func\xc2\xad\ntions in the United States, and therefore should be specifically included in the\ndesignation order. These would include the following:\n(1) immunity of the organization from suit and judicial\nprocess;15\n(2) privileges for official communications;16 and\n(3) immunity of representatives of foreign governments in or\nto the organization and officers and employees of the organiza\xc2\xad\ntion from suit and legal process relating to acts performed by\nthem in their official capacity and falling within their functions\nas representatives, officers or employees.17\n10 This conclusion is based on the facts available to us with respect to INTERPOL'S contacts w ith the\nU nited States. It may be that additional considerations exist o r may exist in the future that w ould w arrant\napplication o f the particular privileges, exem ptions, o r im m unities listed in the text. W e do not suggest that,\nas a m atter o f law , the President must lim it IN TERPO L\xe2\x80\x99s designation to exclude those privileges, exem ptions\nand imm unities.\n1122 U.S.C. \xc2\xa7 288a(a). That section also provides that a designated international organization shall have the\ncapacity to contract and to institute legal proceedings. A lthough we are not aware of any particular need for\nIN TERPOL to be able to enter into contracts o r to institute legal proceedings in the U nited States, that\nauthority is not as clearly unrelated to IN TER PO L\xe2\x80\x99s activities w ithin the United States as is the authority to\nacquire and dispose o f property.\n12 22 U.S.C. \xc2\xa7 288a(c). W e understand the term \xe2\x80\x9carchives\xe2\x80\x9d to mean perm anent files m aintained by the\norganization. To our know ledge, the only archives m aintained by IN TERPOL are located in France. The\nprotection for archives o f international organizations available under the IOIA would not extend to inform a\xc2\xad\ntion w ithin the possession, custody, or control o f a U nited States citizen o r agency that may have originated in\nthe archives o f the international organization. Thus, even if it is deem ed appropriate to provide in the\nexecutive o rder for the inviolability o f IN TER PO L\xe2\x80\x99s archives, that protection would not extend to inform a\xc2\xad\ntion m aintained by the USNCB that originated with INTERPOL. As the U SN C B \xe2\x80\x99s Privacy Act N otice points\nout, the records m aintained by the USNCB are separate and distinct from records m aintained by INTERPOL.\nSee 46 Fed. Reg. 60328 (1981). In the hands o f the USNCB, those records are clearly subject to all applicable\nfederal laws and regulations.\n13 22 U.S.C. \xc2\xa7 288a(d).\n14 22 U.S.C. \xc2\xa7 288c.\n15 22 U.S.C. \xc2\xa7 288a(b).\n16 22 U .S.C. \xc2\xa7 288a(d).\n17 22 U .S.C \xc2\xa7 288d(b).\n\n7\n\n\x0cFinally, it is not clear to us whether the exemptions and immunities from\nimport taxes, entry and exit regulations, alien registration and fingerprinting\nrequirements, and foreign agent registration requirements provided in \xc2\xa7\xc2\xa7 288b\nand 288d(a) of the Act for alien officers, employees, and representatives of\ndesignated organizations would be necessary or appropriate to preserve and\nprotect the functioning of INTERPOL in the United States. We understand that\nofficials and employees of INTERPOL travel to the United States with some\nfrequency for consultations with the USNCB or other United States law en\xc2\xad\nforcement personnel, and that meetings or conferences of INTERPOL may be\nheld in the United States in the future. If INTERPOL and the Department of\nState believe some or all of the exemptions provided by \xc2\xa7\xc2\xa7 288b and 288d(a)\nare necessary or advisable to facilitate such visits, the designation order could\nappropriately include those exemptions and immunities.\nIf the designation order is limited as we discuss, the privileges and immuni\xc2\xad\nties afforded INTERPOL under United States law would be considerably more\nnarrow than those afforded INTERPOL under French law pursuant to the new\nHeadquarters Agreement. The breadth of the privileges and immunities pro\xc2\xad\nvided by the Headquarters Agreement reflects that INTERPOL maintains its\nheadquarters and staff in France and therefore needs additional protections\nunder French law that would not be necessary in the United States, as we have\ndiscussed. With one exception, the privileges and immunities we suggest may\nbe critical to INTERPOL\xe2\x80\x99s functions in the United States, i.e., immunity of\nINTERPOL and its officers, employees and representatives from suit and legal\nprocess, and privileges for official communications, are comparable in scope to\nanalogous privileges and immunities provided in the Headquarters Agree\xc2\xad\nment.18 The one exception is the provision in the Headquarters Agreement for\nfull diplomatic privileges and immunities for the Secretary General of\nINTERPOL. Under the IOIA, the privileges and immunities accorded to offi\xc2\xad\ncials or employees of designated international organizations must be limited to\nthe specific privileges and immunities set out in the Act, and cannot extend to\nfull diplomatic privileges. Section 288e(c) provides that:\nNo person shall, by reason of the provisions of this subchapter,\nbe considered as receiving diplomatic status or as receiving any\nof the privileges incident thereto other than such as are specifi\xc2\xad\ncally set forth herein.\n22 U.S.C. \xc2\xa7 288e(c). Therefore, the Secretary General of INTERPOL could not\nbe accorded full diplomatic privileges under United States law.19\n18 W e understand that the Headquarters A greem ent provides, inter alia, for limited im m unity from legal\nprocess fo r the O rganization, inviolability o f official correspondence, and immunity from legal process for\nrep resen tativ es, o fficials, and members of the O rganization's staff with respect to acts perform ed in connec\xc2\xad\ntion w ith th eir official duties.\n19 T he prim ary practical effect o f this lim itation is to restrict the im m unity o f the Secretary General from\nsuit and legal process under U nited States law to acts perform ed in his official capacity or w ithin his functions\nas S ecretary G eneral. The H ouse Report notes this lim itation was intentional:\nContinued\n\n8\n\n\x0cIn addition to the specific privileges and immunities provided in the Head\xc2\xad\nquarters Agreement, the accompanying Exchange of Letters between\nINTERPOL and the French Government requires INTERPOL to establish a\nSupervisory Board to verify the accuracy of personal information maintained\nby INTERPOL in its internal archives in France and to supervise INTERPOL\xe2\x80\x99s\ncollection, maintenance, and dissemination of such information. We under\xc2\xad\nstand agreement on such a Supervisory Board was a precondition imposed by\nthe French Government for its assent to the specific privileges and immunities\nset out in the Headquarters Agreement. We believe the creation of the Supervi\xc2\xad\nsory Board, although not legally relevant to the question of INTERPOL\xe2\x80\x99s\neligibility for designation under the IOIA, could be advantageous in dispelling\nconcerns that may exist both within and outside the federal government about\nthe possibility of abuse by INTERPOL of its ability to collect and exchange\npersonal information outside the reach of any nation\xe2\x80\x99s laws.20 The Steinberg\nlitigation demonstrates that some concern exists about the possibility of injury\nto innocent individuals by INTERPOL\xe2\x80\x99s dissemination of erroneous informa\xc2\xad\ntion linking those individuals with criminal investigations, concerns that could\nbe exacerbated if INTERPOL seeks immunity from suit under U.S. law. We\nbelieve those concerns could be alleviated somewhat once the Supervisory\nBoard is in operation.\nBecause we do not believe the existence or operation of the Supervisory\nBoard is a legal prerequisite to designation of INTERPOL under the IOIA, we\ndo not suggest the designation be conditioned on the existence of the Board.\nHowever, it may be advisable to describe, either in the executive order itself or\nin an accompanying statement, the operation of the Supervisory Board and the\nprotections afforded by the Board for United States citizens.\nR alph W . T a rr\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n19 (. . . continued)\n[T]he immunity from suit to be extended to officers and em ployees o f international\norganizations is lim ited to im m unity for acts perform ed by them in their official capacity\nw hereas diplom atic officers enjoy full immunity from legal processes in this country.\nH ouse R eport, supra, at 6.\n20 Nothing in the IOIA o r its legislative history suggests Congress contem plated that the privileges,\nexem ptions, o r im m unities available under the Act should be conditioned on the existence o f some alternative\nform o f redress for harms caused to U nited States citizens by activities o f designated international organiza\xc2\xad\ntions. Insofar as we are aw are, no such conditions have been placed on other designated organizations.\n\n9\n\n\x0c"