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Friday, May 12, 2017

“Smart” Snitches

Do you drive a “smart” car or live in a “smart” home? In addition to receiving the benefits of convenience, efficiency, and quantifiable self-awareness, you also happen to be living with a world-class “snitch” who will tell police whenever you end up on the wrong side of the law.   

Consider the fate of James Bates, a Bentonville, Arkansas man charged with murder.  According to police reports, Bates and three associates spent the night drinking and watching football.  The next morning one of the men was dead, floating in the hot tub.  Was it a tragic accident or a murder?  Signs of a struggle led police to suspect Mr. Bates, but police needed a witness.  It turned out they had one – Bates’ smart home.  Bates, its seems lived in a smart home outfitted with an Amazon Echo, a Nest Thermostat, a Honeywell alarm with door monitoring motion sensors, a wireless weather monitoring system, and WeMo devices for remote access lighting. 

The case has received significant news attention because of the possible implications of the technology – what if Amazon’s Echo had overheard potentially incriminating words, “Alexa, how to do dispose of a dead body?” or “Alexa, how to you remove blood stains?”  In addition, Amazon filed a First Amendment motion in opposition to the government’s subpoena requesting the data, an initial legal response that signaled an aggressive privacy and public relations pushback.  

I have been playing around with the idea in a few law review articles, but really the constitutional – Fourth Amendment questions – are quite open.

We know the Fourth Amendment protects “persons, houses, papers, and effects, against unreasonable searches and seizures” and that the Supreme Court has interpreted this language to protect you if you can demonstrate a “reasonable expectation of privacy.” 

So, do you have an expectation of privacy in your smart car?  You drive that smart car on public streets, knowing that each turn is being monitored by a computer connected to a central command.  You even paid extra for it.  Can you claim privacy?  You gave up the information to a third party – Ford or GM via OnStar or 911 Assist – and the service they provide.  And, you are in public.  Should you have any privacy claim against the government watching you in public? 

We know the Supreme Court has expressed caution that long-term direct police monitoring using a GPS device or searching a smartphone both would require a warrant, but with a lawful and narrowly tailored search warrant there may not be much constitutional protection.   The Supreme Court has held in other contexts – like your bank records and phone records – that by giving a third party access to the information you have also given up any expectation of privacy.  The smart thinking is that this “third party doctrine” would apply to your smart car.        

More broadly, how should the Fourth Amendment protect smart data emanating from our “persons, houses, papers, and effects”?  This is a puzzle that lawyers (and law professors) are only just beginning to address.   Think about the data from your smart heart monitor which could reveal your heartbeat at the time of the alleged arson, or the smart energy monitor that shows you are growing pot.  Can police intercept this information from the smart data sources collecting it?  Does the Fourth Amendment even apply to data that lives outside our smart devices?  If not, is there any legal protection from police collecting all of our unsecured smart communications? 

I wrote about the idea in a new article “The Smart Fourth Amendment” but welcome thoughts and other ideas. 

These questions will continue to arise as the Internet of Things develops, expands, and eventually takes over our world.   Your data will become the clues for next generation police investigation. You will unknowingly become your own snitch.        

Posted by Andrew Guthrie Ferguson on May 12, 2017 at 07:00 AM | Permalink


This so nicely dovetails with the earlier discussion about the wrist bands at Disney World. If you operate in the "smart world" you knowingly abandon any hope of privacy. That clam-shell "dumb" (no Android, iOS or Windows) cell phone is looking more attractive every day.

Posted by: Paul | May 12, 2017 2:14:40 PM

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