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 States, 267 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!