There is no explicit right to privacy set out in the United States Constitution. It is referred to in the 4th Amendment with the language "the right of the people to be secure in their persons, houses, papers, and effects…”.[i] The Fifth Amendment includes the right not to be a “witness against himself”[ii] and the 14th Amendment has the due process clause[iii]. There are some federal and state laws protecting privacy in certain circumstances, but no overall right to privacy.
In three cases the Supreme Court developed a theory of a right to privacy. In Griswold v. Connecticut[iv] the court held that a right to privacy could be found in the “penumbras” and “emanations” of these clauses, that while the Constitution does not specifically state a right to privacy, its language shows that there is one. The Griswold court used that reasoning in its holding a Connecticut law outlawing contraception to be unconstitutional. It was followed by Roe v. Wade[v] which built upon the Griswold reasoning to hold laws outlawing abortion to be unconstitutional. Then Lawrence v Texas[vi] which protected the private sex lives of same sex couples. Most recently in Obergefell v. Hodges[vii] the court relied on Griswold when it upheld same sex marriage.
I was listening to a recent episode of the podcast Ologies[viii] on the topic of Futurology[ix] and the guest Rose Eveleth made a point that I have often thought about but never really got around to writing about.
Within the past 10 years we have been giving up our privacy to corporations. Companies like Facebook, Apple, Yahoo, Verizon and Google regularly collect massive amounts of data about us and we freely give it to them. I find this very disturbing.
For example the 4th Amendment protects people from unreasonable search and seizure. The determination of “unreasonable” relies on the concept of a “reasonable expectation of privacy” developed in Katz v United States.[x] A reasonable expectation of privacy passes two tests: an individual has exhibited an actual (subjective) expectation of privacy and the expectation is one that society is prepared to recognize as reasonable. In Katz, the question was whether a phone call made in a glass telephone booth was expected to be private and the court said it was.
So, looking at the two tests, we can safely say that inside your own home and car, we have a reasonable expectation of privacy. When you walk down the sidewalk in public, not so much.
Modern technology has introduced a new factor into this relationship. Home speakers such as Alexa, Siri and Google Home are voluntarily placed in people's homes and autos to listen for commands and questions. As a result the devices are listening to all the conversations going on in the home. There are some settings that can reduce that risk, but it has recently come out that despite those settings, employees of those companies still listen to private conversations for things like troubleshooting the hardware and software and for training purposes.[xi]
What is this doing to the concept of reasonable expectation of privacy if you voluntarily give up your privacy? If you place an Alexa in your home do you still exhibit an actual expectation of privacy? Is society willing to recognize that expectation as reasonable when you voluntarily place a listening device in your home?
Currently when a recording of a private conversation is being considered for admission into a case as evidence a judge will look at those two tests. I can see a future where a judge may well decide that installing such a device in your home reduces your expectation of privacy resulting in the admission of these recordings as evidence. This could lead to those recordings being reviewed without the need for warrants. It would be the same as having a conversation at an outdoor cafe, and one can overhear.
These recordings are already being used in court. In New Hampshire[xii] and Florida[xiii] judges have ruled that the prosecution can use recordings from an Alexa in the investigation of murders and can require Amazon or Google to provide those recordings to the prosecution. In these cases judges have made rulings after the commission of a crime and an investigation determined that there was probable cause that the recordings contained relevant evidence. The time may not be far off when a judge will determine that there is no longer a reasonable expectation of privacy when such a recording device is in the home and warrants are no longer required to access the recordings.
I caution everyone who has or is considering such a home speaker, and that includes Smart TVs too, to give due consideration to privacy versus convenience and make a thoughtful decision on whether you want this technology in your home.
As I conclude I wanted to address a common saying among those who don’t object to the loss of privacy, “If you haven’t done anything wrong, you have nothing to hide.”[xiv] This is an overly simplistic statement. As Cardinal Richelieu said, "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged". You only say you don’t care about privacy until your privacy is invaded.
[i]http://supreme.nolo.com/us/539/558/ https://www.law.cornell.edu/constitution/fourth_amendment
[ii] https://www.law.cornell.edu/constitution/fifth_amendment
[iii] https://www.law.cornell.edu/constitution/amendmentxiv
[iv] https://www.law.cornell.edu/supremecourt/text/381/479
[v] https://www.law.cornell.edu/supremecourt/text/410/113
[vi] https://www.law.cornell.edu/supct/html/02-102.ZO.html
[vii] https://www.law.cornell.edu/supremecourt/text/14-556
[viii] https://www.alieward.com/ologies
[ix] https://www.alieward.com/ologies/futurology
[x] https://www.law.cornell.edu/supremecourt/text/389/347
[xi] https://www.theverge.com/2019/7/11/20691021/google-assistant-ai-training-controversy-human-workers-listening-privacy
[xii] https://www.cbsnews.com/news/amazon-echo-judge-orders-company-produce-alexa-recordings-double-murder-case-2018-11-12/
[xiii] https://www.engadget.com/2019/11/02/florida-police-obtain-alexa-recordings-in-murder-case/
[xiv] https://www.aclu.org/blog/national-security/secrecy/you-may-have-nothing-hide-you-still-have-something-fear
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.