OK, Google: Are you listening?
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OK, Google: Are you listening?

They’re listening, and when they hear that
wake-up word, they begin to respond to your command. When you say, “Alexa, play some jazz.” They know exactly what to do. But that means they’re listening all the time. All the time. They have an artificial intelligence built
in that actually takes the recording of what you say, uploads it to the cloud, where it’s
processed by the servers of Google or whatever company is operating the assistant. The concerns are, where’s that information
being stored? How long is it being stored for? Who is looking at it besides the manufacturer
of the device? Many of us having nothing illegal to hide,
because we’re not … But we all have private spaces. You don’t find the word “privacy” in the Constitution
anywhere. So our privacy rights, such as they are, arise
from the interpretation of the Constitution rather than directly from a line of text in
the Constitution. Going back to a case called Katz, we’ve developed
this idea of a reasonable expectation of privacy. And in Katz, the Supreme Court found that
you had to get a warrant to wiretap a phone booth, and that was because they read the
Fourth Amendment to apply to the person rather than the physical location. Well, the Fourth Amendment, of course, protects
us from unreasonable searches and seizures of, among other things, our papers and effects. So that was a very novel reading of the Fourth
Amendment for the time. And since then it’s become second nature to
us. Both courts and Congress, through creating
statutory protections, have recognized that the Constitution and sound policy mean that
there should be limits on the Government’s ability to access electronic information that
we transmit, and that is held about us by third party providers. Back in the 1970s, the courts developed something
called the Third Party Doctrine. So the Third Party Doctrine is a principle
of Fourth Amendment law, that says when you divulge information to a third party, that
your reasonable expectation of privacy in that information has been ah, extinguished,
at least in many cases. That’s the idea that if I give you information
voluntarily, I cannot protect it by making you not give it to the Government. Is it really voluntary? What’s the other option? You know, if you don’t have email, what’s
the option? No email, right? Good luck getting a job. There’s also an ongoing push to enact legislation
that actually expands the existing statutory protection that would make it clear that a
warrant is required in almost all circumstances when the Government wants to compel a third
party to hand over your information. So for instance already, Congress protects
financial information, your credit card information, or what you bought from Amazon, through your
Google or your Amazon Echo device, your financial transaction information has a higher level
of protection under, under statute, than other information. Healthcare is another example. But your noncontent communication–when you
ordered something, what phone number you dialed. Those are kind of neutral pieces of information,
but in the aggregate, they paint a very realistic picture of who you are, where you like to
go, what you search for, and what matters to you. If I know that you go to the gym, I know something
about your body image and yourself. If I know that you go to the AA meeting every
Wednesday, I know something about your past. I know if you go to your psychiatrist, if
you go to church. Each of these things tells us something about
you. “The New York Times says an irate father
asked a Target manager why his teenage daughter was receiving baby coupons in the mail. Turns out his daughter was pregnant and had
told no one at all but she had been shopping at Target for products an expectant mom typically
buys.” Companies get permission to collect our information
by virtue of the fact that we enter into commercial relationships with them. It may not occur in the way that we normally
think about it, where you walk into a store or where you sit down and sign a document. But when you install an app on your phone,
you probably hit that accept button, without actually reading any of the fine print. This is the infamous terms and conditions
that nobody reads. So when a company says in its privacy policy
that it will only collect information and use it in certain ways, that’s essentially
a contract. When you’re inside a store, you assume that
the clerk can see where you’re walking and will also see what you purchased, and that
same expectation I think should occur online when we’re interacting with a company, that
it’s going to observe the way in which we use its product. So the Third Party Doctrine actually creates
a situation where more data is available than would be protected by the Fourth Amendment. I do not own a digital home assistant device
like Alexa or any of the other ones and you couldn’t pay me to own one. They are essentially home wiretapping devices
that are designed to collect every bit of information about you, and that concerns me. There are solutions to these problems but
they require political will and they require ah, the voice of consumers to, to kind of
fight for them. But I think technology will solve the problems
that arise and allow consumers to achieve the level of privacy and security that they
desire. That’s why it’s even more critical for law
students today, to become involved in these issues because they have personal experience
with an Amazon Echo or a Google Home. And the only thing that stands between them
using the information for good and the, them using the information for intrusive purposes
is law and regulation.


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