Power, Privacy, and Thermal Imaging

Abstract

This paper critiques the result in the Supreme Court's recent thermal imaging case: Kyllo v. United States. More broadly, it critiques the emphasis in Fourth Amendment jurisprudence on privacy, and the recent emphasis, as embodied in Kyllo, on technological advance as a particular species of Fourth Amendment problem. The paper argues that the focus on technology is problematic because it deflects from the inquiry into the cocnern for abuse of governmental power. For example, Fourth Amendment law took a serious wrong turn when it held police spying to fall outside the parameters of a search. The police spying cases are objectionable because they conflate private with governmental misconduct. Although technological advances have exacerbated the harm of police spying, the harm itself does not depend on technological enhancement. Kyllo's general use requirement, which was adopted to curb the determinal effects of technology on Fourth Amendment law, illustrates the problems with unduly focusing on technology. As the paper argues, this requirement fails to address the problems with technological advance in particular, and the Fourth Amendment more broadly, because it will ultimately diminish privacy, and because it does not adequately address the issue of inequality.

JEL Classification: K42