by Nicholas Beaudrot of Electoral Math
Via Matthew Yglesias, actual libertarian Julian Sanchez woorries whether satellite imagery will not constitute a "search" and thus not require a warrant. One one hand, the most direct precedent is on his side, with Dow Chemical v US holding that photography by airplane does not violate the fourth amendment. More recently, however, we have Kyllo v US. In this 2001 case, police used thermal imaging to determine that the defendants were probably using heat lamps, and therefore perhaps growing pot. A 5-4 court held that the use of such technology did not constitute a reasonable search and was thus not permitted without warrant.
You might think that a post-Roberts, post-Alito nose count would suggest that if the case were argued today, the case would come out the other way. But no; oddly, Rehnquist and O'Connor were in the minority that supported the thermal imaging search, while Scalia and Thomas sided with the defendants. So, there is a glimmer of hope, though obviously Matt is correct that if technology is changing our surveillance capabilities Congress could clarify the situation by, you know, changing the law.
—signed, not Ezra Klein, dagnabbit
