Academic journal article Missouri Law Review

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

Academic journal article Missouri Law Review

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

Article excerpt

I. 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.

II. LEGAL BACKGROUND

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

A. 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. …

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