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<div class="header reader-header" style="display: block;"> <font
size="-2"><a class="domain reader-domain"
href="https://www.themarshallproject.org/2018/05/24/your-home-is-your-snitch">https://www.themarshallproject.org/2018/05/24/your-home-is-your-snitch</a></font>
<h1 class="reader-title">The Murky Legal Consequences of Smart
Homes</h1>
<div class="credits reader-credits">By Daniel Zwerdling - May
24, 2018<br>
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<p><span>Opening Statement</span><span>The best
criminal justice news, delivered to your inbox
daily.</span></p>
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<p> <span>Justice Lab</span> is a column that
examines the science, social science and
technology of criminal justice </p>
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<p>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.
</p>
<p>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? </p>
<p>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. </p>
<p>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. </p>
<p>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. </p>
<p>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. </p>
<p>“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. </p>
<p>“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.” </p>
<p>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. </p>
<p>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. </p>
<p>Well, smart devices in your home are <a
href="https://gizmodo.com/the-house-that-spied-on-me-1822429852">constantly
sharing your personal information</a> 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. </p>
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<h2> Case in Point </h2>
<p> An examination of a single case that sheds light
on the criminal justice system </p>
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<p>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. </p>
<p>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. </p>
<p>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!” </p>
<p>European officials have tended to protect privacy
more fiercely than their U.S. counterparts. Consider
the saga of My Friend Cayla, the talking doll. </p>
<p>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. </p>
<p>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. </p>
<p>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. </p>
<p>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. </p>
<p>"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.” </p>
<p><em>Daniel Zwerdling, formerly a senior investigative
correspondent with NPR, is an independent
journalist. The Marshall Project’s daily email
newsletter, Opening Statement, <a
href="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">is
available</a> as a flash briefing on Alexa
devices.</em></p>
<p><em>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.</em></p>
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