[News] The Murky Legal Consequences of Smart Homes

[Anti-Imperialist News]

https://www.themarshallproject.org/2018/05/24/your-home-is-your-snitch


  The Murky Legal Consequences of Smart Homes

By Daniel Zwerdling - May 24, 2018
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Opening StatementThe best criminal justice news, delivered to your inbox 
daily.

Justice Lab is a column that examines the science, social science and 
technology of criminal justice

Police records in Bentonville, Arkansas show that James Bates called 911 
on Sunday morning just before Thanksgiving 2015, and reported chilling 
news: he’d just opened his back door and found one of his buddies 
floating face down in the hot tub, dead. When police showed up, Bates 
said he had no idea how it happened.

He also said they could search his home, according to police. And they 
found his house and yard were equipped with smart gadgets that might 
have served as digital eyes and ears. One was a smart utilities meter, 
which tracks far more details about water consumption than old-fashioned 
meters do. Another was an Amazon Echo on the kitchen counter—a smart 
speaker connected to the voice-controlled digital assistant service 
called Alexa—as in, “Hey Alexa, play me Drake/book a hotel/call an 
Uber.” As the police looked around, Bates probably had no inkling that 
he was entering a national debate: When do police have legal access to 
the trove of personal information that our smart homes collect?

Two developments coming soon could affect the answer. The Supreme Court 
will rule on a case concerning privacy and digital records, and new 
regulations in Europe will tighten access to people’s digital 
information there.

Back in Bentonville, police went after data from Bates’ smart home with 
zeal. A manager at the utilities department told them that Bates’ smart 
meter showed he’d used far more water between 1–3 a.m. than he’d ever 
used during the same period before. Police surmised that Bates had hosed 
the back patio to erase signs of a struggle. They charged him with murder.

Prosecutors also ordered Amazon to turn over the recordings that Bates’ 
digital assistant made before and after he said he found the body. 
Amazon records your vocal commands, and sometimes background talk, and 
stores the audio on distant servers. Amazon resisted, the prosecutors 
started fighting the company in court—and Bates gave up the recordings 
voluntarily. Prosecutors dropped the case late last year, saying they 
couldn’t prove he was guilty. Apparently, Alexa still awaits her court 
debut. But the case gave the nation a glimpse of what’s in store as our 
homes keep getting smarter: law enforcement will treat your appliances 
as potential witnesses.

It seems new smart gadgets are introduced every week. There are smart 
TVs, which suggest the programs they think you’ll like. Smart 
refrigerators are equipped with interior cameras and UPC scanners that 
keep track of the items you stock in your refrigerator, and then reorder 
them as they run out. One brand of smart mattress “tracks over 15 
factors about your sleep and health, including deep sleep, heart rate 
and respiratory rate,” according to its website.

“From a law enforcement or intelligence perspective, these are very 
valuable tools that can let them monitor or listen to individuals,” says 
Dale Watson, the FBI’s former executive assistant director, now a 
consultant.

“Smart devices are also kind of frightening,” Watson says. “What are the 
legal ramifications? The technology is moving so fast that the laws and 
courts haven’t caught up with it.”

One reason there aren’t clear legal guidelines has to do with the way 
smart homes work, which, some analysts contend, means they’re not 
protected by the Fourth Amendment. “The right of the people to be secure 
in their persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated,” the Amendment declares. 
Courts have ruled that means police can’t search your home, except in 
emergencies, without convincing a judge to sign a search warrant on the 
grounds that there’s “probable cause” they will find evidence of a crime.

But the Supreme Court and other courts have established a broad 
exception, called the “third party doctrine.” The government does not 
need a search warrant in most cases to get personal information that 
you’ve already shared voluntarily with somebody else, like a bank or 
internet provider or utility.

Well, smart devices in your home are constantly sharing your personal 
information <https://gizmodo.com/the-house-that-spied-on-me-1822429852> 
with somebody else. This “internet of things” sends details about your 
food orders and sleep cycles and conversations with Alexa through your 
router and over the internet, usually to the manufacturer or a 
contractor. So some government officials argue that the third party 
doctrine applies and they can get that information just by asking for 
it. When “third party” companies balk, police in some states get the 
information by issuing a subpoena, no judge’s approval needed.


    Case in Point

An examination of a single case that sheds light on the criminal justice 
system

<https://www.themarshallproject.org/tag/case-in-point>

For instance, San Diego Gas & Electric Company disclosed recently that 
government agencies subpoenaed data generated by smart meters at 480 
homes and businesses last year. A company spokesperson would not 
disclose which agencies, but the company has given meter data before to 
the FBI and Immigration and Customs Enforcement, among others.

The Supreme Court hasn’t ruled yet on issues raised specifically by 
smart homes, but it is about to decide another case that could have a 
bearing on the issue. The question in Carpenter v. United States is, can 
the government get historical cell phone location data from your phone 
company without a warrant? If so, how far back into your history can it 
go? In resolving those questions, the justices might hint how strictly 
they want to protect other data generated by your smart meter and 
refrigerator.

And on May 25, the European Union will enact sweeping new rules that 
remind America how much its own laws on digital privacy are lagging. The 
policy has an uninspiring name—the General Data Protection 
Regulation—but it does something dramatic, at least on paper: it 
requires companies to clearly tell consumers what kind of data they want 
to collect, and gives consumers an easy way to say, “No!”

European officials have tended to protect privacy more fiercely than 
their U.S. counterparts. Consider the saga of My Friend Cayla, the 
talking doll.

Back in 2016, American advocacy groups, including Consumers Union and 
the Electronic Privacy Information Center (EPIC), asked the Federal 
Trade Commission to ban the 18-inch doll on the grounds that it can spy 
on children and their parents. When children talk to Cayla through a 
tiny embedded mike, software converts their speech into text, then 
searches the internet for appropriate responses, and finally turns them 
back into Cayla’s own voice. Miraculous, perhaps, but critics pointed 
out that the company that makes Cayla’s voice recognition software, 
Nuance Communications, also helps law enforcement and intelligence 
agencies identify bad guys by searching “millions of audio files” in its 
data banks, according to the Nuance website. What if they mistakenly 
identified your child as a terrorist? “It’s beyond creepy,” says Sam 
Lester, EPIC’s main privacy attorney.

The FTC didn’t budge. But German officials banned the dolls last year 
for being an “illegal espionage apparatus.” A German government 
spokesman called on the public to destroy the dolls, or at least disable 
their digital wizardry.

So far, these creepy concerns seem mainly hypothetical. But the torrent 
of personal information generated by smart homes gets the ACLU’s Nathan 
Wessler contemplating troubling scenarios.

Suppose police suspect a man of organizing a political protest that 
turned violent, muses Wessler, who argued the Carpenter case for the 
ACLU before the Supreme Court. The suspect’s smart meter and thermostat 
confirm that a handful of people showed up at his home and stayed there 
the two nights before the demonstration; the suspect’s smart 
refrigerator ordered a bunch of soda and snack food on those days, which 
was all consumed; after someone asked Alexa to play some music in his 
living room, a voice in the background said, “Tomorrow, we’re going to 
really show them”; and that night, the suspect’s smart mattress recorded 
him sleeping fitfully and his heart beating faster than normal. The 
police arrest the man on conspiracy and other charges. He eventually 
proves he’s innocent – some old friends visited from out of town, and 
planned a day of sightseeing—but not before a legal nightmare turns his 
life upside down.

"There’s not a person among us who doesn’t have private aspects of their 
life that could create difficulty for them if they were exposed,” 
Wessler says. “And misinterpreted.”

/Daniel Zwerdling, formerly a senior investigative correspondent with 
NPR, is an independent journalist. The Marshall Project’s daily email 
newsletter, Opening Statement, is available 
<https://www.amazon.com/The-Marshall-Project/dp/B01N2WNNDF/ref=sr_1_1?s=digital-skills&ie=UTF8&qid=1526586352&sr=1-1&keywords=the+marshall+project> 
as a flash briefing on Alexa devices./

/Correction: An earlier version of this story misidentified the agency 
that advocacy groups asked to ban the My Friend Cayla doll. It was the 
Federal Trade Commission./

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