Here’s a quick question. When we invoke the value of privacy to defend why some law or enforcement procedure is inappropriate, surely we mean to reference the fact that we will feel watched and uncomfortable, and we worry that the power we are granting the state is ripe for abuse and overreach?
I thought so, and I would think Justice Kagan was with me when she claimed that a person’s home is their most “intimate and familiar space”. It’s clear that live CCTV recordings in one’s living room, for instance, could be rejected on these grounds, even if crimes like domestic abuse would consequently decline.
But if that is all true, I wonder how the value of privacy is also supposed to motivate a ban on drug-sniffing dogs and the taking of thermal images. These detect heat and smells as a means of finding crime. They don’t observe us or reasonably intimidate us in any obvious way. What is protected by ruling that the police even need a warrant for these?