Lawmakers must clarify privacy protections for the Internet of Things

The Internet of Things may allow police to listen to conversations happening in your house. The latest example comes from police in Bentonville, Arkansas who believe an Amazon Echo may have witnessed a murder. 

{mosads}Police believe the Echo, a small computer that is always on, recorded audio from the house where the crime occurred. They postulate the device recorded audio from the murder itself. Because they believe the Echo was on and that Amazon keeps records of all the recorded audio, the police issued a warrant to Amazon for all “electronic data in the form of audio recordings, transcribed words, text records and other data” the device may have captured.

An Echo, which comes with a few speakers and microphones, constantly “listens” for certain key words. Once it “hears” a key word, it transmits the user’s verbal instructions to Amazon’s Alexa Voice Services, which is a cloud-computing platform. Once the instructions are transmitted, AVS interprets the instructions, returning the appropriate response to the device.

If the correct key words were uttered during the murder, it is possible the Echo activated and Amazon recorded the crime. This scenario is highly unlikely, but it does serve to highlight both the privacy battles that will occur in the age of the IoT and some of the solutions to these upcoming battles.

The IoT is exciting. It can also be scary. Internet connected devices designed to increase convenience could be turned against their owners if law enforcement suspects they may be involved in criminal activity. This means connected cars, cameras, and other devices with cloud storage could be targeted by law enforcement agencies. If a victim, or the subject of an investigation, has a Nest security camera, can police subpoena the video files from Google? If a house has a smart thermometer, can police subpoena the temperature data to determine whether a suspect is at home?

The Fourth Amendment prevents law enforcement from searching a person’s house, person or effects without a warrant. Amendments to the Constitution, along with state constitutional provisions, provide that the government may not protrude into an area where people have a reasonable expectation of privacy. If a conversation occurs in a house, the people involved in the conversation likely have an expectation of privacy. That is to say, they do not expect anyone, especially the police, to overhear the conversation. 

But what if one of the conversers has an Amazon Echo? If she knows the device connects to the Internet, or records data into the cloud, is there still an expectation of privacy? Yes. Privacy implications do not change when there is an Internet connected microphone in the room. Law enforcement agencies may think otherwise, and it is up to courts and legislators to protect people’s privacy. 

Elected legislators are the best protection for their constituents. Courts, while an excellent protection, according to Supreme Court Justice Samuel Alito, are not in the best position when compared to legislators. 

“[I]t would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment,” Alito wrote. “Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”

Courts can be slow. Legislatures can act quicker than the courts. Legislators, and especially state legislators, can best balance between privacy and law enforcement. They can tell both courts and law enforcement that people do not lose their privacy because they purchase an Amazon Echo. They can prohibit law enforcement from sending warrants to obtain audio or video recordings stored in the cloud, or they can place stringent limitations on the ability to obtain such information. 

Many innovations produced by the IoT will introduce incredible conveniences for people. People must be aware that law enforcement officials may try to obtain evidence from cloud platforms. For the most part, existing laws should protect people, as should courts. In the gray areas, federal and state legislators can easily clarify laws and protect the privacy interests of their citizens. 

Jonathon Hauenschild, J.D., is a technology policy analyst. He is the founder and principal of Franklin Adams & Co., LLC.

The views expressed by Contributors are their own and are not the views of The Hill.