“There are many ways to surveil each other now, unfortunately,” including “microwaves that turn into cameras, et cetera. So we know that that is just a fact of modern life.” Kellyanne Conway, March 12, 2017 Interview with New Jersey’s The Record.
Data from microwaves-turned-cameras has yet to appear in court, but data from other IoT devices has. And while its appearance has been invaluable in cracking criminal cases or pursuing civil claims or defenses, it also has raised constitutional and privacy issues.
Here we highlight some recent IoT device cases.
- smart speaker: In a murder case, the police seized the defendant’s smart speaker on the theory that it may offer evidence of what transpired the night of the murder at the defendant’s home. A search warrant was then served on the speaker’s manufacturer for the audio recordings that had been uploaded to out-of-state servers. The manufacturer moved to quash the warrant, contending that it had First Amendment rights to publish and speak through the speaker. The motion was later mooted when the defendant gave the manufacturer permission to turn over any audio recordings. See Arkansas v. Bates, No. CR-2016-370 (Cir. Ct. Benton County, Arkansas).
- search engines: In censorship and unfair competition cases, plaintiffs brought claims against internet companies arising out of their search results. The companies moved to dismiss on the grounds that their search results were protected speech under the First Amendment. Florida and New York federal courts agreed: the companies’ production and ranking of search results was similar to that of a newspaper exercising protected editorial discretion over what to publish. It made no difference that the search results arose out of automated computer programming. See e-ventures Worldwide, LLC v. Google, Inc., No. 14-cv-646 (M.D. Fla. Feb. 8, 2017); Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014).
- fitness wearable: In another murder case, the victim’s husband told police that he was at home fighting off an intruder when his wife returned from the gym no later than 9 am. According to the husband, the intruder then shot his wife, tied him up, and ran out of the house. The police searched the wife’s fitness wearable. Its data showed that the wife was still moving about the home a distance of 1,217 feet between 9:18 am and 10:05 am. After additional discoveries of the husband’s extra-marital affair and attempt to cash in on the wife’s life insurance, the husband was charged with murder. See https://www.nytimes.com/2017/04/27/nyregion/in-connecticut-murder-case-a-fitbit-is-a-silent-witness.html.
- pacemaker: In a home arson case, the homeowner told police that he did a number of things as soon as he discovered the fire: he gathered his belongings, packed them in a suitcase and other bags, broke out the bedroom window with his cane, threw his belongings outside, and rushed out of the house. The police searched the 59-year old’s pacemaker. Its data showed that the man’s heart rate barely changed during the fire. And after a cardiologist testified that it was “highly improbable” that a man in his condition could do the things claimed, the man was charged with arson and insurance fraud. See http://www.abajournal.com/news/article/data_on_mans_pacemaker_led_to_his_arrest_on_arson_charges.
- biometric devices: In privacy violation cases, plaintiff consumers have alleged that technology companies have illegally obtained, used, or shared personal “biometric identifiers” – generally, fingerprints, voiceprints, and retinal/facial scans — without consent in violation of privacy laws. Illinois state and federal courts have sustained some of these claims and approved settlements. See Rivera v. Google Inc., No. 16-C-02714, 2017 U.S. Dist. LEXIS 27276 (N.D. Ill. Feb. 27, 2017); Sekura v. L.A. Tan Enterprises, No. 2015-CH-16694 (Cir. Ct. Cook County, Illinois); http://www.chicagotribune.com/bluesky/originals/ct-biometric-illinois-privacy-whats-next-bsi-20170113-story.html.
These IoT device cases – whether in the civil or criminal context — present interesting First and Fourth Amendment issues and privacy rights. Considering the growth of new IoT devices and their expanding use, identifying and understanding the constitutional issues and privacy rights will continue to gain importance in courtroom disputes. And on the horizon are similar issues and rights surrounding artificial intelligence and augmented reality devices.
But don’t hold out for an onslaught of microwave-turned-camera cases.