U.S. – China Student Space Law Symposium: The March of Science – Fourth Amendment Implications of Remote Sensing in Criminal Law

March 3, 2010 at 2:10 pm | Posted in Blogcast, Remote Sensing Law, Space Law | Leave a comment

by P.J. Blount with the blog faculty

Mr. Surya Gunasekara of the University of of Mississippi School of Law gave the next paper titled The March of Science: Fourth Amendment Implications of Remote Sensing in Criminal Law. Gunasekara began by pointing out that technology permeates many aspects of modern life, and that his interest is how remote sensing technology will fit into the United States criminal regime and specifically the Fourth Amendment prohibition on unreasonable searches and seizures.

He gave an introduction to the Fourth Amendment and the move from a property based standard in Olmstead to a societal expectation of privacy under Katz. He then began to discuss aerial surveillance cases. Starting with California v. Ciraolo he traced Supreme Court Jurisprudence through Dow Chemical v. United States and Florida v. Riley. He stated that this line of decisions placed few restrictions of aerial surveillance by the government.

He then discussed Kyllo v. United States, which was a thermal imaging case. In this decision the court found that the use of the thermal imaging did constitute a search in violation of the Fourth Amendment because it disclosed intimate details from inside the house. The court also stated that device used would need to be in general public use, and that in this case the device was not.

He noted that in relation to satellite remote sensing that there is no case on point. He did point to cases such as the United States v. Fullwood in which the use of satellite images as evidence has been allowed.

He then turned to a Canadian case on thermal imaging, R. v. Tessling. He stated that this case was very similar to the Kyllo case but that the Canadian court decided that the the surveillance in Tessling was not an warrantless search under Canadian law.

Finally, he discussed two approaches the Bright Line Rule Approach, which has been adopted by U.S. Courts, and the Evolutionary Approach, which was adopted by the Canadian judicial system. He concluded that the U.S. Supreme Court’s approach has eroded privacy, because technology will continue to become more widespread and therefore more reasonable in its use in searches. He suggested that an evolutionary approach better protects citizens from government intrusiveness.