Academic journal article Harvard Law Review

If These Walls Could Talk: The Smart Home and the Fourth Amendment Limits of the Third Party Doctrine

Academic journal article Harvard Law Review

If These Walls Could Talk: The Smart Home and the Fourth Amendment Limits of the Third Party Doctrine

Article excerpt

Imagine a not-so-distant future in which you can open the blinds, turn on your shower, start the coffee machine, turn on the lights, and change your thermostat, all without getting out of bed. You may be able to control these functionalities from your smart phone, or better yet, dictate your commands to a smart home "assistant" or hub, which will then implement these commands throughout your home. Your automated assistant recites your schedule for the day, along with directions for how to reach all your destinations. Once you've left the house, you can monitor your security cameras from a feed on your cell phone and lock your door from an application on your phone. Your refrigerator knows what groceries you have run out of and alerts you, or perhaps goes ahead and orders them for you. (1) If your home automation system is any good, it should also be able to "learn" about your habits and implement your preferences automatically. (2) The convenience is alluring.

The emergence of home automation--otherwise known as the "smart home"--is a natural step in the proliferation of everyday products that connect to the internet. Smart home technologies necessitate the sharing of personal information across a multitude of third-party service providers, which is disconcerting to privacy advocates. (3) Beyond possession of this information by private third parties, what looms largest is the threat of government collection and aggregation of this information from said third parties. (4) The detrimental effects of such unconstrained information gathering are well documented. (5) More generally, the collection of such information represents ever-growing intrusions into personal privacy. Our daily activities increasingly involve turning over information to third parties in order to undertake basic transactions, such as online banking, email, inter net browsing, and cell phone use. Further, such advances in technology make it such that "those records are linked and shared more widely and stored far longer than ever before, often without the individual consumer's knowledge or consent." (6)

However, one may be surprised to learn that many of these personal digital records are not granted Fourth Amendment protection, simply because they have been shared with third parties. (7) Further, Fourth Amendment jurisprudence in this sphere has not adequately evolved to compensate for the rapid explosion in both the quantity and sensitive quality of the information shared in this way. In large part, the inadequacy of this response can be attributed to courts' continued application of the third party doctrine, under which the government is able to access such private information without a warrant, thereby effectively allowing the government access to large aggregations of personal data. (8) The doctrine has been used to allow warrantless collection of email records, internet browsing data, and cell phone location history, among others. (9) The basis for the rule is that information relinquished to a third party is no longer considered private. (10)

This Note argues that the current third party doctrine cannot adequately protect individuals' privacy rights that are implicated in the smart home context. Thus, the Supreme Court ought, and may be especially inclined, to update the doctrine. Further, the Court can do so in a way that is consistent with its own Fourth Amendment jurisprudence--by applying the context-based "reasonable expectation of privacy" test. (11) Namely, the Court should consider the voluntariness of the disclosure, the nature of the information shared, and the identity of the recipients, as it did when deciding the cases leading up to what is now the third party doctrine. The context of smart homes puts the modern absurdity of the third party doctrine into especially stark relief. "[I]f the machines [and the government] are watching, maybe the home is not really the home anymore?" (12) The home is the bedrock of the Supreme Court's Fourth Amendment jurisprudence, where individuals' privacy interests are at their peak. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.