Apr 21, 2013

Posted in Uncategorized

Kyllo Update: Are Handheld Thermal Cameras In “General Public Use Yet”?

In Kyllo v. United States, Justice Scalia offered an introducing test to determine whether the use of a termal imaging camera, a novel technology that could not be known at the time of the founding, constitutes a search for purposes of the Fourth Amendment.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v.United States267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

In 2001 when this case was decided, the thermal camera was not in common use. However, this may be changing.

Wired reports that DARPA was able to shrink a massive thermal camera into a handheld device.

Darpa announced yesterday that one of its partners, New Jersey defense contractor DRS Technologies, has developed an infrared camera with pixels sized at only five microns across, or five-millionths of a meter. That’s about the standard pixel size of a smartphone camera or DSLR. Unlike that hardware, the Darpa camera uses thermal imaging — long-wave infrared — to detect body heat. The military’s night-time targeting sensors could start becoming a lot smaller and more pervasive.

What if this feature is added to the new iPhone 7? I can imagine the slick apple marketing video narrated by Johnny Ive:

Don’t you ever wonder how cool someone really is? Now, there’s an app for that. With iTemp, you can measure a person’s temperature without even talking to them. Is that new guy you meet cool? Or is that girl across the bar hot? With iTemp, the answer is in your hand.

With iTemp in the App Store, Kyllo II would yield a different answer under Scalia’s rubric.

I previously blogged about NYC using handheld weapon scanners that can see under clothes. I suppose soon enough these will be in “general public use,” and a search with one will be constitutional.

Boston used a heat-seeking camera to track down the Boston Marathon bombing suspect hiding under a tarp in a boat:


We’ve come a long way in the last century, as this German postcard from 1900 illustrates the X-Ray police force!


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  • Christopher Hale

    Thermal imaging solutions are operating on the cutting edge of thermal technology and take advantage of the most advanced technology available on the market in terms of software/hardware capabilities, performance, and optoelectronic design. As more and more people realize the great potential of this imaging technology, thermal cameras are being used today in many applications and many different ways. In many countries worldwide, thermal cameras play pivotal roles in a wide range of government, commercial, and industrial activities.

    • jb

      but what is their legit purpose? I can see search and rescue ….but other than that even f they are widely available….what could be their legal non tortious (invasion of privay) uses? Peeping tom? Binoculars are widely avaiable but the rule is still naked eye right? This opinion of the court has limits. Even if a detector was genaerally availabe to see escaping heat from insulation leaks….if ppl got the good ones that could peer through insulation and watch the bedroom etc. They would be breaking the peeping laws. I doubt a fresh court would say since everyone else is breaking the law and lookin in others homes ….so can the cops without a warrant. Gps tracking is widely avaiable. Binoculars. And dogs. And the ct has said no.

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