Friday, January 13, 2006

Insurance Fraud—Satellite Imagery

With the NSA launching an investigation into the covert eavesdropping of American citizens’ phone conversations,[1] and the DOJ launching one into who leaked a story to the New York Times that President Bush had ordered the eavesdropping,[2] concerns about domestic spying are on many peoples’ minds.

The US Department of Agriculture’s Risk Management Agency [hereinafter RMA] is using satellite imagery “in courtrooms across the nation” to “crack[] down on farmers involved in crop .”[3] The satellites take images at “roughly eight-day intervals,” monitoring “when farmers plant their acreage, how they irrigate them and what crops they grow.”[4] When a farm files an insurance claim, if an anomaly is found, “investigators can search satellite photos dating back years to determine cropping practices on individual fields.[5] The technology has also been used in water rights civil litigation, and “in prosecution of ranging from a hog confinement facility’s violations of waste discharge regulations to injury damage lawsuits stemming from herbicide applications.”[6]

According to the RMA, less than 100 cases have used satellite imaging since 2001, but “three other multi-million-dollar crop insurance cases … have yet to be filed.”[7] These cases, it is claimed, will rival the somewhat notorious prosecution of Robert and Viki Warren, who were each sentenced to more than 5 years in prison and ordered to pay $9.15 million in restitution.[8]

Moreover, it isn’t just American satellites that look down at our country: “Germany, France, and others have satellites monitoring crop conditions, and many other private firms sell those images in the US.”[9]

A reasonable reaction to the use of satellite imagery in these cases is to ask whether the spying is unconstitutional. The , after all, states “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” However, what constitutes a person’s house, and what constitutes reasonableness, are matters of interpretation.

The 2001 Supreme Court case [10] is the bellwether case concerning technological surveillance. In Kyllo, police used a thermal imaging device to scan a triplex home to determine if heat signatures emanating from the house were consistent with heat signatures seen when a person uses grow lamps to grow marijuana.[11] When the police determined that the defendant’s house was producing those types of heat signatures, they sought, and received, a search warrant to search his house, where they found marijuana.[12] In Kyllo the Supreme Court reiterated that “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable,” but also noted that the defendant must manifest that subjective expectation.[13] In the end, the thermal imaging was an unlawful search because it used “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.”[14]

Here’s the kicker. Aerial surveillance, however, does not constitute a search.[15] In two similar cases, ,[16] and ,[17] the Supreme Court held that the defendants could not have a reasonable expectation of privacy in their greenhouse or yard. In Ciraolo, the defendant had erected two fences more than six feet in height around some marijuana plants he was growing in his back yard.[18] When the police tried to investigate the yard, they were unable to see into the yard, so they secured a private plane and flew over the defendant’s home at 1,000 feet where they made a visual observation of marijuana plants.[19] They then secured a search warrant based on the observations and arrested the individual.[20] Likewise, in Riley, police flew a helicopter over the defendant’s greenhouse at a height of 400 feet, where they saw what looked like marijuana growing in the greenhouse.[21]

In both cases, the Court noted that “the home and its curtilage[22] are not necessarily protected from inspection that involves no physical invasion. ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’”[23] Generally, “the police may see what may be seen ‘from a public vantage point where [they have] a right to be.’ Thus the police, like the public would have been free to inspect the backyard garden [or greenhouse] from the street if their view had been unobstructed. They were likewise free to inspect the yard from the vantage point of an aircraft flying in the navigable airspace.”[24]

While it looks likely that the Supreme Court would rule in much the same way vis-à-vis satellite imagery, the question seems to never have come up. And while a person rarely has an expectation of privacy in a crop, it would still be interesting to make an argument based on Kyllo that that technology is not generally in the public use, and meld it with Riley and Ciraolo by arguing that the satellite is not gathering information from a vantage point that most people are allowed to be.


[1] See Dan Eggen, , Wash. Post, Jan. 11, 2006.
[2] See Agence France-Presse (via Yahoo!), Dec. 30, 2005.
[3] Roxana Hegeman, , Associated Press (via Yahoo!), Jan. 13, 2006.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. See also, John Burnett, , Natl. Pub. Radio, Nov. 14, 2005.
[9] Hegeman, supra note 3.
[10] 533 U.S. 27 (2001).
[11] Id. at 29-30.
[12] Id. at 30.
[13] Id. at 33.
[14] Id. at 40.
[15] Id.
[16] 488 U.S. 445 (1989).
[17] 476 U.S. 207 (1986).
[18] 476 U.S. at 209.
[19] Id.
[20] Id. at 210-11.
[21] 488 U.S. at 448-49.
[22] The curtilage is “[t]he land or yard adjoining a house, usu. within an enclosure. … The cartilage is an area usu. protected from warrantless searches.” Black’s Law Dictionary 411 (8th ed. 2005).
[23] 488 U.S. at 449 (internal citation omitted)
[24] Id. at 449-50 (internal citation omitted).

posted by McNabb Associates, P.C. @ 1:40 PM