NCPA - National Center for Policy Analysis

Interpreting The Constitution In This High-Tech Age

June 18, 2001

Constitutional scholars marvel that the document is so constructed on universals that it can be applied to all ages -- even today's high-tech age. As proof, they are citing and applauding Justice Antonin Scalia's majority opinion last week in the case Kyllo vs. U.S.

The case concerned the government's use of a thermal imaging device aimed at the house of an individual suspected of growing marijuana. The high heat levels detected on the exterior of the house led government agents to surmise that the occupant was using heat lamps to grow marijuana.

  • For the 5-4 majority, Justice Scalia declared that when government agents use surveillance technology that isn't ordinarily used by the general public to explore details of a home, the surveillance is presumptively unreasonable without a search warrant.
  • Legal observers say the Scalia decision is a welcome affirmation of privacy rights in our technology age -- and charge that some previous Court decisions have missed that opportunity.
  • For example, in the 1928 Olmstead case -- which involved the government placing wiretaps on a bootlegging suspect's phones from lines in streets near his home -- Chief Justice William Howard Taft's majority decision held that the Fourth Amendment forbids only searches or seizures accompanied by a physical trespass on private property.

The Olmstead case was the Court's first encounter with electronic searches. Until now, it hasn't notably come down on the side of privacy.

In these and other cases, conservatives and liberal justices have joined in unexpected alliances. This proves that on the Supreme Court, as on Capitol Hill, privacy is a cross-cutting, bipartisan issue.

Source: Jeffrey Rosen, "A Victory for Privacy," Wall Street Journal, June 18, 2001.

For WSJ text (requires subscription)


Browse more articles on Government Issues