Technology or Privacy: Should You Really Have to Choose Only One?

• Author: Haslag, Callie

1. INTRODUCTION

   Today's society has both the blessing and the curse of having access to a vast range of technologies. A person can be diagnosed by doctors while video-chatting from his or her own home, communicate with someone located on the other side of the world instantaneously, or monitor his or her home through enhanced security systems. It is even possible to give simple commands, like "Turn on the lights" or "Play my favorite song," and a home assistant device, such as the Amazon Echo, will complete the given task. While these technologies offer many blessings, there are potential downsides that accompany their presence.

   People are currently living in the Information Age, where devices record and collect data based on their personal information. (1) This data is often stored by third parties, including, but not limited to, internet service providers, phone companies, websites, and merchants. (2) This data is used for different purposes, but most is used for advertising and learning a user's preferences. (3) However, this information can also be made available to the government--specifically for law enforcement's use. (4) The data collected by these third parties provides detailed records as to an "individual's reading materials, purchases, diseases, and website activity," which "enable[s] the government to assemble a profile of an individual's finances, health, psychology, beliefs, politics, interests, and lifestyle." (5) Therefore, the government could know more about a person than even his or her closest family members and friends.

   one of the latest technologies taking hold across America is the smart home device. These devices include products such as Amazon's Echo, Nest's connected home devices, smart home security systems, smart water meters, and even refrigerators with interior cameras that broadcast directly to a person's phone. These devices monitor and record data from users' homes, which is then stored by the third parties providing the services. (6) This data, while appearing to be under a user's sole control, can be used by the third-party service provider. (7) Law enforcement agencies seek to access the data held by third-party service providers to collect private information about individuals when investigating crimes like drug trafficking, white-collar offenses, cyber misconduct, and even more serious crimes, like murder. (8)

   For example, in November of 2015, law enforcement requested that Amazon turn over data it collected from an Amazon Echo, which was located in a home where a death occurred. (9) Amazon refused. (10) Despite the fact that the police secured a search warrant, Amazon refused the request on privacy grounds, stating it would not release customer information "without a valid and binding legal demand properly served." (11) Amazon also objected to what it felt were "overbroad or otherwise inappropriate demands." (12) Eventually, Amazon turned over the data; however, it did so only after the Echo owner, and suspected murderer, gave consent. (13) As there are currently few standards for how smart home devices should be treated under the law, this Note explores existing case law to assess and articulate how the government should treat the data these devices collect.

2. LEGAL BACKGROUND

   There are two main areas of law surrounding the issue of privacy and technology: privacy law and the third-party doctrine.

   1. The Fourth Amendment and Early Privacy Law

      Privacy law is complicated because it must evolve to address ever-changing technology to protect the fundamental rights that have existed since our nation's founding. Protecting one's personal information was significantly easier prior to the invention of telephones, GPS, and the Internet. However, it is still just as important now as it was prior to these technological advancements to protect a person's right to privacy. To fully understand privacy law today, one must possess a background understanding of how it has evolved.

      1. Pre-Olmstead Privacy Law

         The Fourth Amendment provides the first major source for protecting privacy from law enforcement infringement. The Fourth Amendment secures Americans' right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (14) It further requires probable cause for warrants. (15) This Amendment was intended to guarantee the "privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the government." (16) In its jurisprudence, the United States Supreme Court has defined "search" as a government infringement upon "an expectation of privacy that society is prepared to consider reasonable." (17) Additionally, the Court has defined a "seizure" of property as "some meaningful interference with an individual's possessory interests in that property." (18) Therefore, as a general matter, warrantless searches are "per se unreasonable under the Fourth Amendment," although there are a "few specifically established and well-delineated exceptions." (19) "[T]he Fourth Amendment concerns itself with 'informational security' arising from 'constitutional sources. .. . 'Informational security' [refers to] personal information that is secured in some manner from governmental intrusion. .. . '[C]nstitutional sources' means the textually referenced, 'persons, houses, papers, and effects.'" (20)

         To implicate the Fourth Amendment, a government agent must conduct a "search" or "seizure." (21) The first Fourth Amendment case relevant to this topic was Boyd v. United States, (22) which involved a court order demanding a commercial glass company to produce its private business papers. (23) The Court held that the order violated the Fourth Amendment because such a demand was an "invasion[] on the part of the government. .. of the sanctity of a man's home and the privacies of life." (24) The Court further articulated that it was "not the breaking of his doors, and the rummaging of his drawers, that constitute[d] the essence of the offen[s]e[] but [rather] the invasion of [the] indefeasible right of personal security, personal liberty and private property, where that right [had] never been forfeited by [a] conviction of some public offense. .. ." (25)

         The Court in Boyd was not focused on a physical harm but rather the harm of revealing information. (26) Additionally, the focus was not on the company's papers themselves but rather on the content contained in the papers. (27) Further, the Court distinguished business records from personal records, such as a diary. (28) The reach of these "privacies of life" go beyond personal information and cover "privately held, but not overtly intimate[,] information." (29) "[T]his broad protection. .. was [later] replaced with a more limited, physically-oriented, property-based" framework. (30)

      2. Olmstead v. United States (31)

         Although it is hard to imagine life without the various forms of technology that influence people each day, the world was not always so technologically advanced. There was a time when the telephone was considered a major technological advancement. Even then, telephone users learned that private telephone calls could be affected by the surveillance of third-party service providers and law enforcement. (32)

         The first major decision regarding surveillance technology was Olmstead v. United States, (33) where the Court held there is no reasonable expectation of privacy in telephone calls when no physical trespass occurs; moreover, the Court allowed the warrantless tapping of phone lines. (34) In Olmstead, federal agents tapped the phone lines of certain individuals suspected of being involved in the unlawful importation, possession, and sale of liquor. (35) The Court noted that the suspects' telephone wires were tapped without trespassing on any property owned by them, and the information was gathered for many months. (36) The Court reasoned that the "well-known historical purpose of the Fourth Amendment" is to prevent the government from "search[ing] a man's house, his person, his papers, and his effects, and to prevent their seizure against his will." (37) However, the Court found the wiretapping did not constitute an unreasonable search under the Fourth Amendment because there was no physical trespass. (38)

         The Court in Olmstead failed to recognize the parallels between papers sent in the mail and electric signals sent along a wire. While the Court recognized the technological advancement of telephones as compared to communication through written letters, it was unwilling to extend Fourth Amendment protection to this new technology because the Fourth Amendment was thought to be limited only to searches and seizures of tangible property. (39) Following this logic, the Court ruled that there was no search or seizure in listening to the telephone calls because the evidence was collected by the agents using only their auditory perception. (40) Further, the Court reasoned that there was neither an "entry of houses or offices of the defendants" nor a "seizure" of any property. (41)

         While the majority did not wish to recognize the technological advancement, Justice Louis D. Brandeis understood that there could be instances in the future where technological advancements trigger Fourth Amendment protection and maintained that Fourth Amendment protections should have been, and would eventually need to be, extended further than the literal text of the Amendment. (42)

      3. Post-Olmstead Privacy Law

         The Olmstead decision provided the standard for many years with regard to technology and electronic surveillance. While the Court hesitated to extend Fourth Amendment rights to intangible invasions, (43) it drew a bright-line for physical searches. (44) Any physical invasion of the structure of the home "by even a fraction of an inch" was deemed to be a violation of a person's rights. (45) For example, in Goldman v. United States, (46) a microphone placed on a wall to eavesdrop on an...