I thought I'd share this lovely piece called, The Internet of Things and the Fourth Amendment Effects, as I drudge the tail-end of the spring semester--exams and deadlines looming large.
Professor Andrew Guthrie Ferguson succinctly writes about the far-reaching effects that contextual IoT devices and household products (e.g., "Smart" Barbie, Amazon's Kindle, Nest Learning Thermostat, among many more) might have on Fourth Amendment doctrine and jurisprudence. Specifically, his work seeks to answer two crucial questions in relation to America's modern understanding of the right to privacy in the context of high-tech surveillance capabilities:
- What is a Fourth Amendment "effect" in a world defined by interconnected, network like Internet of Things?
- Assuming that a Fourth Amendment "effect" has a broader definition including the data embedded in the object and the communication signals emanating from the device, then what expectation of security should attach to these effects?
He writes, "[t]he reemergence of traditional terms of arts such as 'effects' adds new urgency to a redefinition of the terms consistent with modern technology (and even modern physics)." We all know IoT devices continuously and seamlessly record and embed an unfathomable amount of data. This is especially true when considering an interconnected network of, say, household IoT devices (which are increasingly popular in the marketplace). What people might not realize is that the insertion of IoT networks in the proverbial "home" could upturn traditional American legal thought.
From the American point of view, the prime danger to private sovereignty has traditionally been that “the sanctity of [our] home[s]"--in the words of a leading nineteenth-century Supreme Court opinion on privacy--would presumably be breached by government actors. Boyd v. United States, 116 U.S. 616, 630 (1886). To the American mind, what matters is sovereignty within one’s own home; the right to privacy, at its metaphoric core, is a right to hide behind the walls of one’s own home. Perhaps what is most important about this line of thought is that the symbolic “home” has heavily informed the “reasonable expectation of privacy,” a key legal standard in American privacy law. See Veronica School District 47J v. Acton, 515 U.S. 464 (1995).
Now, given the increased use of household IoT products in U.S. homes, people are perhaps unintentionally opening themselves up for in-depth surveillance and undue intrusions of privacy by the government. This, to me, sounds like an unsavory development, since U.S. privacy law is largely sectorial. Ferguson artfully opines in his paper:
IoT technology has the potential to generate an almost inescapable data web that monitors many aspects of one's life. From home appliances, to cars, to medical devices, the objects are continuously digitizing daily life. While society has recently been made aware of possible high-tech surveillance techniques involving cameras, drones, GPS tracking, and cell phone collection, it has not always envisioned the linking of disparate technologies on a very personal level. Knowing you called a certain number (cell data), drove to a certain house (drone/camera), and repeated that trip every week (GPS) pales in comparison to knowing those facts plus the time the bedroom light comes on in that house (through NEST systems), the elevated heartbeat in that bedroom (through health monitors), and the opening of a particular enchanted pill bottle (smart bill bottles) – all of which might provide a much better clue about the nature of your business at the house. Problems of aggregation and magnification heighten the potential personal invasion as a data rich environment creates a wider mosaic of life patterns. Police might no longer need to physically follow a suspect, when smart sensors allow them to do so virtually.
Time will only tell whether virtual intrusions via IoT will constitute a "search" under the Fourth Amendment, or relatedly, whether the legal standard for one's "reasonable expectation of privacy" will one day include a layperson's "digital exhaust" that is emitted by her use of her IoT products, within her own home.