PRIVACY IN THE TWENTY-FIRST CENTURY SMART HOME.

• Date: 01 July 2018
• Author: Allen, Susan

1. Introduction

   It was not long ago that Apple released its Siri feature wowing consumers with both its capabilities and cutting-edge technology. (2) Suddenly the term "smart phone" took on a whole new meaning with Siri's ability to text, call, find directions, and do much more. (3) To some, it only seems natural that the next development will be that of the "smart home." (4) Enter the Amazon Echo, first released in 2014. (5) Originally perceived as a smart speaker, the Echo and its Alexa personification have the ability to carry out over 500 tasks, all initiated simply through the utterance of a "wake word." (6) For example, an Echo owner can inquire about the weather or the score of a recent sports event by merely wondering out loud. (7) Some perceive this impressive development of technology as threatening, fearing that artificial intelligence will someday overtake humankind; however, most purchasers remain simply amazed by the Echo's capabilities. (8)

   Nevertheless, the Echo's tremendous ability carries with it a slew of legal questions. Much like its competitors, such as Apple's Siri or Microsoft's Cortana, the Echo collects and stores all of a user's inquiries, as well as any inadvertent comments made after the device's activation. (9) This understandably distresses consumers, however, companies such as Amazon maintain that their privacy policies provide users with the requisite notice that their data is to be collected. (10) Furthermore, this practice now raises concern as to what happens to such data after its collection, and for what purposes it may be utilized. (11) Aside from the commercial use of data collected from within the home, there now exists a new method for the government to infiltrate the homes and private lives of American citizens. (12) Consumers are alarmed by the government's new ability to monitor daily life because of the intimate nature of the home setting. (13) This is especially noteworthy when one considers that for nearly two hundred years after the nation's founding, the government could not obtain private papers as evidence of criminal activity, regardless of the existence of a warrant. (14) While we cannot be certain of what developments lay ahead, we can anticipate possible complications arising from new technological advances by examining the past.

2. History

   The Framers of the United States Constitution included the Fourth Amendment to protect United States citizens against unreasonable searches and seizures. (15)

   In the decades leading up to the framing of the Constitution, the New World colonists lived under the rule of the British Crown. (16) The British Crown employed general warrants and writs of assistance as measures to combat political opposition and the possession of untaxed consumer goods such as salt, sugar, and foreign imports. (17) The colonists were concerned about the seemingly endless and limitless searches ordered by the crown because of early notions that a man's home was his castle. (18) James Otis stated, "One of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is well guarded as a prince in his castle." (19) Although they ultimately rejected rule under the crown, the colonists remained inspired not by what the Magna Carta said, but instead what it had come to mean. (20) William Pitt demonstrated the meaning of the Magna Carta when he addressed Parliament in 1763 and declared:

   The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter, the rain may enter, but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement. (21) Thus, concern existed regarding the sanctity of the home decades before the framing of the Constitution. (22) Nonetheless, as colonists began to feel more and more oppressed by the British crown, they sought to create their own laws and governments. (23) instead of referring to British law as a precedent for the colonies, the would-be framers instead repudiated it and set out to create new laws. (24) One of their major objectives was to end the pervasive use of general warrants and writs of assistance. (25) In 1756, the then province of Massachusetts did just this and "abandon[ed] general warrants in favor of warrants founded on some elements of particularity." (26) Other colonies would follow this trend and incorporate similar law in their respective Declaration of Rights. (27) Finally, after much conflict about the specific wording of the clause, the Framers included the Fourth Amendment in the Bill of Rights in 1791. (28)

   A The Scope of the Fourth Amendment

   The law and modern technology have seemingly always conflicted with one another. Not only is this true today, but it was also true in decades ago as well, as proved by Katz v. United States (29) This case reached the Supreme Court after government investigators bugged a public phone booth in order to intercept Katz's transmission of gambling information. (30) Katz argued that the government violated his Fourth Amendment rights through its intrusion into his private conversations. (31) This case remains relevant today over 50 years later because it established that the Fourth Amendment protects people, not specific places. (32) This case was also innovative because it established that physical intrusion was no longer necessary to constitute a search, and that searches could occur without physically entering into someone's home. (33) The Court wrote that "[w]hat a person knowingly exposes to the public, even in his own home or office, is subject to Fourth Amendment protection[,] [b]ut what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (34) Through this statement, the Court began to focus to what extent an individual perceives her privacy by narrowly defining the scope of the space she considers to be her home. (35)

   The Katz case also remains relevant today because it established a new standard for the application of the Fourth Amendment. (36) The Court determined that the application of the Fourth Amendment depends on "whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." (37) This standard is then broken down into a two-part inquiry. (38) The first question is "whether the individual, by his conduct, has 'exhibited an actual (subjective) expectation of privacy." (39) The majority paraphrased this question by asking whether the individual in question has shown that "he seeks to preserve [something] as private." (40) The second part of the inquiry is whether the "individual's subjective expectation of privacy is one that society is prepared to recognize as "reasonable." (41) The Court applied this new standard and ruled in favor of Katz because he "justifiably relied" on the expected privacy of the phone booth. (42)

   2. The Fourth Amendment and Third Parties

      It was not long after the Katz decision that the Court was forced to employ this standard in the case Smith v. Maryland. (43) This case arose after Baltimore police had the local telephone company install a pen register at its central office to record the phone numbers the suspect dialed, all without a warrant. (44) The petitioner moved to suppress all of the evidence collected by the pen register, but was denied and convicted. (45) The Court of Appeals affirmed the judgment, holding that "there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within." (46) Therefore, a warrant was not necessary because there was no search conducted in the first place. (47)

      The Supreme Court applied the Katz standard and first questioned whether there was an invasion of the petitioner's property. (48) The Court ruled that because the installation of the pen register occurred at the central headquarters of the phone company, the government never intruded onto a constitutionally protected place, such as a residence. (49) Additionally, the Court determined that the petitioner had no "legitimate expectation of privacy" and thus failed the first part of the Katz inquiry. (50) The Court stated that people generally do not have an expectation that the phone numbers they dial will remain private, as placing a phone call requires the phone company's technology to connect lines. (51) The Court then ruled that the petitioner failed the second part of the Katz inquiry stating that "[e]ven if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, the expectation is not one that society is prepared to recognize as reasonable." (52) The Court differentiated Katz from Smith by highlighting that in the former, where it ruled in favor of the petitioner, the government had the ability to intrude by listening to the content of the conversations in question. (53) This was not the case in Smith because the pen register merely recorded the phone numbers dialed, not the actual conversations of the phone calls. (54) The Court affirmed the ruling and stated that "[a] person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." (55)

   3. The Fourth Amendment and Entry into the Private Home

      The case Kyllo v. United States (56) demonstrates how the law developed further after Smith. This case concerned the suspected growing of marijuana inside a private home and the tactics that police officers utilized in their investigation. (57) Investigators knew that growing marijuana in a home required the use of heat lamps so they utilized a thermal imaging device to locate places of extreme heat within the suspect's house. (58) This methodology sparked the question as to whether the...