Smart dust: just a speck goes a long way in the erosion of fundamental privacy rights.

• Author: Rubin, Rebecca

1. INTRODUCTION

   "Every technology has a dark side--deal with it."

   --Kristofer J. Pister, Professor of Electrical Engineering and Computer Sciences, UC Berkeley (1)

   The very essence of a citizen's right to privacy is embedded within the Fourth Amendment of the United States Constitution. (2) Americans inherently possess the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (3) A "search" is viewed through a societal lens of reasonable privacy expectations and a "seizure" equates to a loud interference with a person's possessory interests. (4) The inescapable inference to privacy protection in the Fourth Amendment is scattered throughout multiple other Amendments as well, particularly in the Ninth Amendment, which explicitly addresses the protection of those basic rights "retained by the people." (5) The rapid introduction of breakthrough surveillance technologies tests the scope of the Fourteenth Amendment and unenumerated privacy protections, while the law simultaneously struggles to adapt to modern changes. (6) The challenge for government is to ensure that not only are privacy protections upheld, but that there is a limited risk of misuse of these technologies by law enforcement and citizens alike. (7)

   While the United States has been showered in intrusive, surveillance technologies for decades with the introduction of wiretaps, night-vision goggles, thermal imaging, beepers, and biometrics, the wildly invasive "smart dust" puts these other technologies to shame as the "ultimate privacy invasion." Smart dust, miniature sensors proposed to be smaller than what the naked eye can see, has the potential to track individuals in the most detailed aspects possible as they go about their daily lives. (9) While the public is aware that surveillance technologies carry potential privacy threats, and while the smart dust inventors claim that privacy loss will likely occur with their technology, many scholars and researchers have told the American public to simply, "get over it." (10) Smart dust is an inventive component in a new nanotechnology revolution and has the potential to monitor battlefields, transportation, the environment, medical diseases and the brain, product quality, etc. (11) Yet, while privacy is not absolute, especially within the public sphere, discreet technologies like nanotechnologies run a risk of misuse where their presence is highly undetectable. (12)

   This Note will attempt to argue that while smart dust has myriad social, governmental, and scientific benefits, it is just another barrier to the fundamental liberties and protections of American citizens who roam within the public sphere. I will discuss the historical legal implications of advanced surveillance technologies such as thermal imaging, beepers, and GPS, and propose that smart dust is a vast step above this plethora of assisted physical surveillance systems, entering highly intrusive territory. Ultimately, this Note will argue that the privacy and environmental risks which follow smart dust far outweigh its benefits, and that smart dust violates protections guaranteed by the Fourth Amendment and unenumerated privacy provisions.

2. HISTORY

   1. Precedent Addressing the Public Sphere

      Privacy rights must be dissected within both the public and private spheres to understand just how much protection we are afforded by the Constitution and ultimately by state and federal governments. In early twentieth-century case law like Hester v. United States (13), the Supreme Court affirmed a conviction for concealing distilled spirits, and held that the special protection afforded by the Fourth Amendment, that is, the right to be free from unreasonable search and seizure, did not extend to open fields. (14) When the defendants in the case threw suspected moonshine whiskey on the ground while running from law enforcement, officers were able to arrest them without a warrant because no entry into the home occurred, and evidence was obtained outdoors in an open space. (15) Hester relied on common law physical trespass to determine a bright-line rule for violating one's privacy rights under the Fourth Amendment, ultimately effecting that the Fourth Amendment is irrelevant when applied to open spaces. (16)

      In Olmstead v. United States (17) the defendants were convicted for unlawfully possessing, transporting, and selling liquor during prohibition and were caught because of police wiretaps on their telephone. (18) The Olmstead holding echoed the out-dated ideas of common law physical trespass, repeating that a "search" only applied to tangible items, and there is no privacy surrounding telephone calls which enter the public sphere and can be easily intercepted outside of the home. (19)

      In analyzing United States v. Knotts, (20) the court expanded upon the crux of Hester and Olmstead and applied a "legitimate expectations of privacy" test to determine if the Fourth Amendment was violated. (21) In Knotts, officers placed a chemist of a suspected methamphetamine enterprise under watch and monitored his delivery of chloroform drums to defendant Darryl Petschen. (22) Police took their surveillance further and placed a beeper in a can of chloroform with the chemical company owner's consent. (23) The officers followed Petschen's subsequent drive to a cabin owned by defendant Leroy Knotts, and they ultimately discovered the cabin was a cover for their drug laboratory. (24) The court found that the warrantless tracking of a beeper was not constitutional because the officers discovered the drug lab only after the beeper came to rest on Knotts's private property. (25) The court admitted that even though beepers reveal what may have already been in public view, the beeper ultimately landed in a private sphere that would not normally have been accessible to the public, and therefore, Knotts had a reasonable expectation of privacy. (26) However, though Petschen tried to argue that he had a subjective expectation of privacy, the Court ruled that his argument had no weight since he passed through public thoroughfare and traveled to a property which he did not possess. (27)

      While landmark constitutional privacy rights cases contain facts, which differ drastically from modern surveillance technologies, their monumental holdings lay the foundation for an individual's basic rights. Griswold v. Connecticut (28) allowed married couples to operate their fundamental right to choose contraceptives over procreation, free from government interference. (29) While Griswold's holding stressed that one of the most cherished events in a person's life is a person's marriage and emphasized that marriage should be protected, it addressed the broader need for personal autonomy free from government intrusions and explicitly protected Fourth Amendment privacy rights. (30) Similarly, Lawrence v. Texas (31) upheld the personal autonomy of homosexuals to engage in sexual intimacy within the private sphere of their homes, following police interference during the defendants' private act and their subsequent arrests. (32) Lawrence iterated the important point that "freedom extends beyond spatial bounds," hinting that perhaps even private moments should be protected within the public sphere. (33)

   2. Precedent Addressing the Private Sphere

      The legitimate expectation of privacy test referenced in Knotts originated out of Justice Harlan's concurrence in Katz v. United States (34) where he laid out the twofold requirement that (1) a person exhibit "an actual (subjective) expectation of privacy," and (2) "that the expectation be one that society is prepared to recognize as reasonable." (35) Katz iterates the notion that the Fourth Amendment protects people, not places, and that what a person knowingly exposes to the public is not constitutionally protected. (36) Where the defendant entered a phone booth with the expectation that there would be no intruding ears (even in the course of transmitting wagering information in violation of a statute) his acts were protected by the Fourth Amendment because he placed a call, shut a door behind him, and society reasonably expects a public telephone booth to allow for private communications. (37) Katz effectively overruled Olmstead and erased the out-dated doctrine that unreasonable search and seizure cannot apply to non-physical things. (38)

      Following the Katz test implemented by Justice Harlan, Kyllo v. United States (39) posed a challenge to the Supreme Court to determine the limits of technology to "shrink the realm of guaranteed privacy." (40) Kyllo involved law enforcement's use of a thermal imaging device to study the heat exuding from the defendant's home in order to determine if marijuana was being grown inside. (41) The lower courts found that "no intimate details of the home were observed" removing objective privacy, and that no subjective privacy was shown on behalf of the defendant because he did not try to conceal the heat. (42) However, the Supreme Court considered that modern thermal imaging technology allowed for far more than "naked-eye surveillance," where the warrantless obtainment of information from inside a person's home intruded upon Kyllo's intrinsic privacy expectations, and hence, violated the Fourth Amendment. (43) The Court further differentiated between "off-the wall" observation and "through-the-wall" observation, concluding that heat emanating from the walls of the home led to the discovery of intimate details. (44)

      In 2009, People v. Weaver (45) introduced the controversy surrounding the use of the Global-Positioning System ("GPS") to track potential criminals without a warrant in the state of New York. (46) Law enforcement placed a GPS under defendant's bumper and monitored him continuously for sixty-five days, leading to his eventual conviction for burglary. (47) The New York Court of Appeals reversed defendant's conviction, holding that GPS is a groundbreaking...