By Melinda Carstensen
Has technology made the Fourth Amendment obsolete?
That's the concern of many privacy advocates, who argue advances in smart home technology may be providing the government with a kind of 'digital back door' into people's homes, one that gets around the need for search warrants and traditional Fourth Amendment protections.
“People have always had cameras in their home, but now they’re becoming more common,” said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation. “There’s a whole host of issues that are going to crop up because of these technologies.”
Last August, police obtained video footage of Internet advertising mogul Gurbaksh “G” Chahal beating his girlfriend, Juliet Kakish, at his apartment in San Francisco. Chahal initially faced 47 felony counts, but in April he pleaded guilty to only two misdemeanors after his attorney successfully argued that cops had obtained the footage without a warrant.
Chahal had video cameras throughout his home, including two in his bedroom, where the beating occurred.
"We're seeing law enforcement across a variety of areas arguing that they should be able to access information with lower standards than before the electronic age," Jay Stanley, a senior policy analyst with the American Civil Liberties Union, told CNN Money.
- Do you think courts should provide greater leniency with the Fourth Amendment to catch criminals? Or do you believe Internet-connected data should always remain private until law enforcement officials obtain a warrant?
Apple isn’t the only company to get into smart home systems. AT&T, Time Warner Cable and Verizon also offer them. Google recently bought “smart” thermostat maker Nest Labs, and Nest Labs announced last week that it acquired compact home security camera company Dropcam for $55 million.
Dropcam’s new product, Dropcam Tabs, goes for just $29. Whenever a door opens or closes at home, users can get alerts sent to their cellphones.
Although these technologies can help reduce electric expenses and keep homeowners safe, they could gather data that can be used against them in court.
"Smart" meters are becoming increasingly common in the suburbs, and they're marketed as energy savers. But opponents say they offer too wide of a window into homes, and gather data that could show users' time spent away from home, or cooking or watching TV.
The American Civil Liberties Union of Vermont calls for stronger privacy restrictions with smart meters on its website.
"As with cell phone data, we think it's fine if police have access to smart meter data — provided that they go to a court, show probable cause to a judge, and a warrant is granted," the ACLU said. "Consumers need to know who can access their data and under what conditions. Strict privacy controls are needed."
In a recent case, federal agents used thermal imaging to learn that Florence, Oregon, man Danny Lee Kyllo was growing over 100 marijuana plants in his home.
But the court ruled that authorities violated Kyllo’s Fourth Amendment right when they scanned his home using an infrared camera without a warrant.
As more states legalize recreational and medical marijuana, cops will have to obtain affidavits from judges and issue warrants before they can crack down on individual sellers.
While judges grapple with how to treat these new technologies in the court of law, at least one, E-ZPass, has been used to catch adulterers in divorce court for years.
Under the Foreign Intelligence Surveillance Act, companies also have been able to legally, and secretly, submit personal data requests to companies in national security matters. CNN Money reports that Apple, Google, LinkedIn, Microsoft and Yahoo already receive thousands of them.
Those companies released ranges of their FISA requests after they filed lawsuits seeking their right to disclose them.
Facebook General Counsel Colin Stretch, whose company reportedly received requests covering between 5,000 and 5,999 accounts, advocated for more transparency in an April 2013 blog post.
“We strongly encourage all governments to provide greater transparency about their efforts aimed at keeping the public safe,” Stretch wrote, “and we will continue to be aggressive advocates for greater disclosure.”