Julian Sanchez makes the case that advances in satellite technology may have rendered our conventional privacy laws obsolete:



The courts have, to date, not regarded aerial observation by planes as a "search" for Fourth Amendment purposes, under the plain view doctrine. The sensible intuition here is that you have no protected privacy interest in what can be observed without entering your property: If you're foolish enough to put your marijuana crop in front of an open window—or in a field that can be spotted by someone flying overhead—you can't complain if the police notice it. But the analogy to casual observation begins to seem awfully strained when we consider the potential of satellite imaging to create a perpetual record of whole regions of the country, allowing anyone's comings and goings to be tracked. This may, then, present a problem of what Lawrence Lessig has called "Fidelity in Translation": Constitutional rules create a balance between conflicting interests—citizens' need for privacy and law enforcement's need to gather information—but as technology changes, the application of the same rule may produce a very different balance of interests. The question, then, is how, whether, and when fidelity to the Constitution may mean discarding the original rule in order to preserve the original balance.



Of course, another solution here would be for congress to recognize there's a problem and pass a sensible law governing the use of satellite imagery. Sadly, though, we've seen a few times that there seems to be majority support in congress for the view that 9/11 made civil liberties obsolete.

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