Academic journal article Santa Clara High Technology Law Journal

The Internet of Things: Where Privacy and Copyright Collide

Academic journal article Santa Clara High Technology Law Journal

The Internet of Things: Where Privacy and Copyright Collide

Article excerpt

Table of Contents  INTRODUCTION I. PRIVACY AND THE INTERNET OF THINGS   A. The Reidentification Problem   B. IoT Devices Pose Even Greater Risks   C. Privacy Regulation of IoT Devices II. DMCA AND IOT   A. DMCA Anti-Circumvention Provisions   B. DMCA, Privacy, and IoT Devices III. PROPOSAL   A. Option 1: Add an Infringement Nexus to the Anti-Circumvention      Provision   B. Option 2: Repeal [section] 1201(i)   C. Option 3: Update and Broaden [section] 1201(i) and      [section] 1201(e)     1. The New [section] 1201(i) Privacy Exception     2. Expanded [section] 1201(e) Law Enforcement Exception CONCLUSION 


You wake up. Your wearable device tells you that you did not sleep very well. You see that your first meeting got pushed back forty-five minutes and that your alarm let you sleep an extra fifteen minutes. You walk into the kitchen where the coffee, triggered by your alarm, has already been brewed. Your fridge tells you that you're low on milk and that more has been ordered online. After breakfast, you head to your car. As you leave, the lights in your apartment go off automatically and the temperature is lowered. Your car is already warmed up enough to melt the ice off of the windshield. The car tells you how to avoid the accident on your route and reminds you to call your mom. (1)

But this idyllic world is interrupted when you arrive at work and find out, while reading an internet blog, that all the activities you have been manually inputting into your wearable device are now available online for everyone to see. Apparently, the device company has made such data public by default. some of those activities you input were sexual in nature. This has quickly turned into a nightmare--your boss reads the same blog! And unfortunately, this last part of the story is not science fiction. In 2011, Fitbit users found out that the sexual activity records of approximately 200 customers were showing up in Google search results. (2) Fitbit quickly remedied the problem, but no one can really erase the embarrassment those users must have felt.

We live in a world surrounded by devices that monitor our every move. These devices can connect to the internet and thus coordinate with one another, creating the Internet of Things ("IoT"). (3) They provide enormous benefits and efficiency, but they also completely shift our concept of privacy. Wearable devices in particular raise new privacy concerns. Senator Chuck Schumer warned that wearable devices such as Fitbit are "a privacy nightmare" because they collect such sensitive information as GPS location and sleep patterns, which can then be sold to third parties. (4)

Fitbit has in the past responded to scandals in a timely fashion. On the same day as Senator Schumer's statement, Fitbit updated its privacy policy stressing that the company does not sell data that can be used to identify its users. (5) Chuck Schumer responded by saying that Fitbit is doing "exactly the right things" with its updated privacy pledge. (6) Despite Chuck Schumer's retreat and Fitbit's expedient response, Fitbit and wearable devices like it may still pose a "privacy nightmare" for consumers. Although the company has revised its privacy policy, explaining that it only "share[s] or sell[s] aggregated, de-identified data that does not identify you," there is still plenty of room for concern. Fitbit collects all sorts of data--some data you provide yourself and other data the device measures on its own, e.g., with accelerometers. (7) Fitbit devices collect data about your location, the number of steps you take, your weight, height, gender, and how you sleep. (8) This type of data can be used to figure out, for example, your gait, which is completely unique to you, when you take the bus or ride a bike, (9) your mood, (10) or if you might be pregnant (sometimes, even before you know). (11) This data is invaluable, both to companies like Fitbit, and to third parties that buy such data. …

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