In a series of earlier posts (here, here, and here), I suggested that big data is going to pose problems for privacy, insofar as privacy depends on a distinction between information and data. Here, I want to look at how that problem plays out in a specific 4th Amendment case on thermal imaging devices.
In 2001, Justice Scalia, writing for a 5-4 majority in Kyllo v. U.S.,struck down the use of thermal imaging devices without a warrant. Danny Kyllo grew marijuana inside his home, an endeavor that involved the use of high intensity lamps. A police officer had used a thermal imaging device from his squad car on the street to detect the heat from the lamps. On that basis, the police obtained a warrant to search the home. The question before the Court was thus whether the original use of the thermal imaging device constituted a “search.” Scalia reasoned that the Court had consistently held that “visual surveillance” did not constitute a search. However, “the present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much.” Scalia reasoned that this case crossed the line:
