The Fourth Amendment and the Common-Law Trespass Torts
- ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.
This issue is most likely to play out in surprising ways when it comes to the question of what kinds of contact constitute a trespass. The line between tangible and intangible contacts is a problematic one in property law, as Justice Alito’s concurrence observes. For real property, a series of cases ask whether dust, vibrations, or radiation can sound in trespass, or whether they must be raised as nuisances. Radiation, in particular, will be of great interest for advanced surveillance technologies: imagine an active version of of the thermal scanning devices at stake in Kyllo v. United States. But land has other boundaries as well. If we’re committed to an originalist understanding of trespass, then the ad coelum rule presumably applies, which means drones need to stay out of the column of airspace above the suspect’s property (or at least the column above her house).http://www.techpolicy.com/Blog/June-2012/The-Fourth-Amendment-and-the-Common-Law-Trespass-T.aspxDTE stockholders need to take a look what is going on with GE stockholders. Get out of nuclear before you lose your pants.