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Kyllo and Remote Sensing Technology

by Blake Hemphill

This post is part of the student blogger project from the summer session of Space Security Law.

Blake Hempill is a native Mississippian and rising 2L. He intends to enter the field of Entertainment Law.

While last week I focused on remote sensing overall, and how it is used by both States and their citizens, this week I’ll focus more on how it is viewed legally. While its use, and possible abuse, is one of global concern, this week’s post will focus more on the domestic views that have developed surrounding the issue. In the United States, the governing opinion on remote sensing, and its use on actors within the country’s borders, stems from the decision in Kyllo v. United States.1

Kyllo is an opinion dealing with the federal government’s use of thermal imaging to detect possible grow houses, used in the growing of marijuana. After establishing a house was emitting an excessive amount of heat, an indication that a lot of lamps were possibly being used to grow something inside, law enforcement would then secure a search warrant and make a raid on the property to recover any evidence of drug manufacturing and make arrests. The question being put to the court in this case was whether the use of thermal imaging technology constituted an illegal search of private property, since they were clearly intending to search for people having a higher heat register.

The court in the past ruled that simple flyovers of property were not in violation of the fourth amendment, because commercial and private air travel had long been established as a routine occurrence, and that people should therefore have no reasonable expectation of privacy when it comes to something that is clearly visible by the naked eye from a normal altitude of a plane in flight. The court upheld this in future cases, with rulings that helicopters and planes that broke below the normal altitude did not fall into this category, and would therefore not be a proper plain view exemption to the fourth amendment. Kyllo represents a hybrid problem, a plain view vantage point but with the use of sense enhancing technology.

The Kyllo court ruled that this was not a proper search, as the use of thermal imaging falls outside of the plain view doctrine. The court found the government’s argument that sense the simple use of thermal imaging did not penetrate the walls of the home, either through the ability to see in or listen to conversations, to not be very persuasive. This decision could very well be one to keep an eye on in the future, however, as the court was split five to four in its decision, and could very well flip the other way in the future.

Kyllo brings about many questions about the implications for advanced imaging technology in satellites and its use. It appears that the decision, puts a clear barrier on what can and cannot be used, at least when it comes to being able to obtain a proper warrant against someone. Satellite images are fine, because air traffic has already made the space above us, unless someone has the very unlikely chance of having a no fly zone over their property, open to all eyes, therefore anything that can be easily seen is fair game. Anything beyond this parameter seems to cross the boundaries, however, and enter an area where if not illegal, at least gets murkier.
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1 Kyllo v. United States, 533 U.S. 27 (2001)