If your home for sale becomes a crime scene, does law enforcement need a search warrant if an online virtual tour previously invited the public to visit your home?
On an Oct. 1, 2002 episode of CBS television's "CSI:Crime Scene Investigation" fictional Las Vegas forensics agents raised just that question when they investigated a murder in a home that was listed on the Internet. The listing came with what turned out to be a revealing digital home tour.
(Another incident in the same episode triggered a civil suit filed October 31, 2002 in U.S. District Court in Denver, CO by RE/MAX International. RE/MAX sued CBS and owner Viacom over the use of signage similar to RE/MAX's. In the story, a real estate agent exhibits unethical practices and is a robbery, pornography and homicide suspect.)
When the fictional law enforcement agents used enhanced images from the digital tour to "search" the house for clues, evidence they discovered helped them solve the case and opened a door to a gray area in personal privacy and security.
"Who needs a search warrant?" asked one of CSI's forensics investigators.
"They invited us into their home," he said referring to the virtual tour.
Virtual tours are digital videos of homes for sale.
Adding a new dimension to a listing, a virtual tour is uploaded to a Web site with a listing's text content. The virtual tour allows prospective buyers to "walk through" a home and really "get into" the house in a way not possible with even the most descriptive narrative or highest-resolution photographic image.
Virtual touring technology allows prospective buyers to spin the point of view up, down and around in virtually any (potentially dizzying) angle to hover or "move" through rooms at varying speeds, feel the floor plan and get close up on the finishes from the basement to the rafters.
It's a lot like watching a miniature version of a wrap-around IMAX movie. Whatever valuables the seller leaves to be digitized has a bit part in the show.
Long before CSI raised the search-warrant issue, digital tours caused security and privacy concerns because they could be used by someone casing a home for valuables, though there are no reports of such activity.
Apparently, in a high-tech example of art imitating life, the tours also may be used on the other side of the law -- in lieu of a search warrant, according to Clifford S. Fishman, a law professor at the Washington, D.C.-based Catholic University of America Law School and expert on search and seizure, electronic surveillance and evidence.
He says the U.S. Constitution and Supreme Court rulings mandate:
There is, however, an exception to the rule.
"If a home owner puts a digital tour of his home on the Web, he 'knowingly exposes' what is visible to the public, and therefore gives up the 'reasonable expectation of privacy' which would otherwise protect his home from police surveillance not authorized by a warrant," says Fishman.
"If, however, the police used image-enhancing equipment not generally available to the public, this may (the answer is not completely clear) constitute an intrusion which would be unlawful without a search warrant," Fishman said.
It's not an issue that's likely to get a real court test anytime soon.
That's because they are costly and generate a questionable expense.
"Virtual tours are a wonderful source of information for consumers, but there have been some barriers of entry for many agents. The first decision is whether it is worth the time and expense to hire a videographer or to video tape the tours themselves. Either way, it comes with substantial costs," says Blanche Evans, publisher of AgentNews.com in Dallas,TX.
"Some markets have been overheated, and the homes sell before the virtual tour can even be processed, which causes some agents to forego using them in favor of a front-door shot, with perhaps other stills of the home," Evans added.
NAR's proposed Virtual Office Web or VOW could address both the security issue and the legal gray area.
"The essence is that it (VOW) would identify anyone who is looking at the data before they are allowed to look at it. You just couldn't use it to case a house without them knowing you were looking," said Mark Lesswing, vice president of NAR's Center for Realtor Technology.
VOW would also remove the virtual tour from the realm of "knowing exposure to the public".
"If you have a brick and mortar operation you wouldn't leave out all the keys to all the houses that are your listings, so why would you leave all this information on the Internet without knowing who is looking at it? It would address the issue from a person casing the joint to law enforcement not getting a search warrant," Lesswing said.
Of course, gathering information about someone merely electronically window shopping is likely to raise another privacy issue.