[1] https://caselaw.findlaw.com/us-supreme-court/533/27.html
[2] Used throughout the ruling[1], but especially section II of Justice Stevens' dissent.
[3] The ruling[1], 2nd paragraph
[1] https://caselaw.findlaw.com/us-supreme-court/533/27.html
[2] Used throughout the ruling[1], but especially section II of Justice Stevens' dissent.
[3] The ruling[1], 2nd paragraph
You cited the summary, which may be useful but isn’t legally binding. The actual opinion starts after “Justice Scalia delivered the opinion of the Court.”
Also, Kyllo isn’t relevant to your concerns. A microphone and radio which picks up audio and transmits it is a technology which has been around for more than 60 years. Use of that technology has been addressed by the court in Katz and its predecessors, which collectively found that warrantless use by the police of such tech is often prohibited by the fourth amendment.
A more relevant question is whether the fourth amendment would allow police to access records stored by Amazon in the case of conversations picked up by Alexa devices. Usually, such data is fair game (third-party doctrine), but there are some constitutional restrictions (See e.g., *Carpenter v. U.S., 2018). However, even if there were no restrictions, the question is probably moot because other laws (Wiretap Act, Stored Communications Act) restrict police behavior. Basically everyone believes that these restrictions apply to Alexa recordings.
Recently there was a case in which a police department served Amazon with a subpoena for Alexa recordings from the scene of a suspected murder. I don’t remember the outcome in that case, but that too is irrelevant to concerns about warrantless collecting or searching of Alexa data, because there a warrant was or could have been obtained.
The ruling is about agents using thermal imaging technology to bust a marijuana plantation, performed from a car on a public street. The court stated that this does not constitute a search, since any random citizen could've done the same thing using commodity equipment.
Always on microphones that transmit via the internet (i.e. bugs) have been a commodity for... a few decades? But you still cannot legally bug your neighbor's apartment.
From the court's opinion (the above [1]):
>> ... obtaining by sense-enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," constitutes a search--at least where (as here) the technology in question is not in general public use.
>> Based on this criterion, the information obtained by the thermal imager in this case was the product of a search.
>> the imaging in this case was an unlawful search
That's why face recognition bans and other privacy protection laws ("personally identifiable information") are so welcome.
It has not been normal until the last few years for people to typically have an Alexa-like device that is always listening for the "I'm about to make a request" signal, which frequently gets turned on by accident.
It's not ridiculous that someone might conclude in the future, "if you're in someone's house with such a device, you should reasonably expect that some part of your conversation might get sent to the third party", which would mean a diminishing of the right to such privacy in 4th amendment jurisprudence.
And frankly, the whole concept of using voice to activate it is reckless. It is unavoidable to have significant false positives. It should be done with a non-audio signal that can't be faked (up to the limits of modern crypto), like an authenticated EM signal to turn on the listening.
Google Now: 2012 Siri: 2010 Microphones in cell phones: longer than those two.
It hasn't only been a few years.
In any case, 4 years vs 10 years doesn't matter. The point is, a court hasn't addressed it in the context of changing norms, at which point I claim there is a danger that it will re-evaluate what counts as private, just as OP was.
Google Now never was, to my knowledge, though I could be wrong.
Now as to whether they could find anything to charge you with that would stick that would depend on if the state had any sort of peeping tom laws, and if the police went up to the house and found if anyone was naked or partially naked in the house while the thermal camera was being used.
That said if there was a peeping tom law, and there was a naked person, the party with the camera that was charged could then argue that thermal cameras don't show enough to be considered under the law.
However it is my experience that police can be creative when they want to charge someone when that someone is doing something they don't like, so not sure that just a peeping tom law would be brought into play on such a circumstance.
I suppose after all this you might argue that police overreach does not make it actually illegal, but in general my viewpoint is that something being illegal is determined by power and in the case under discussion the court wanted what the police did not to be illegal because they felt it benefited the power of the system that it be so, and therefore shaped their arguments to their wants, not to any particular logic or moral sense. Thus when later another court wants the people on the street using the tech to be illegal, power gets what it wants.
As you imply, none of this prevents the police from arresting you and taking you downtown anyway. They can even say they thought it violated peeping tom laws (Heien vs. North Carolina). Beyond that, "you can beat the charge but you can't beat the ride" is an old truism among abusive police.
Kyllo is almost 20 years old, so the likelihood of a city having a law contravening it is probably low (IANAL).
I think you're wrong that they generally require the peeper to be looking while on private property because if that were the case the peeper would be trespassing and could be charged with that, although certainly it may be the case in some places. State by state basis makes it difficult to say for sure.
I guess it might be beneficial to have peeping tom laws limited to what one does on private property with the understanding that rich people have big enough property that you have to get on it to reasonably violate their privacy. Thus you can construct the law to protect the privacy of rich and poor alike as long as they have 5+ acre estates. And it is true that is is nice to have multiple things you can charge someone with, so they can plea bargain some of them away. So that they can be charged with trespassing still doesn't mean that they wouldn't want a law to charge them with peeping as well.
But as I understand it the reasonable expectation of privacy generally applies to stuff like your home, or a private dressing room (if talking about actors) and so forth.
Thus if someone is having a shower in the upper bathroom and you have climbed up a high tree off their property to look through an open window that they would not expect anyone to climb because wtf, then you are probably a peeping tom and violating a peeping tom law if it exists in that state.
You... not. But the police? Issue a warrant and they don't even have to risk, as in the decades before, having a spy physically break in to the building or the target discovering the bug.
Secret services (CIA/NSA) probably even have their direct uplink to Amazon or at least under-the-tables cooperations established to snoop on foreign people "for antiterror reasons" (aka helping out allied services, just like with the BND and MI5 with snooping on global Internet traffic).
Not defending it, but your smart phone is not quite as bad as Alexa. At least for the moment.
Source: Mine does, very useful!
That gives me enough information to guess there's people who would make apps that take the private data without asking, whether the option to turn off privacy feature blocks them all or not is the question.
Thank Google / Amazon for creating drama where none existed.
This is possibly the biggest single problem with modern surveillance/privacy culture. The idea of requiring an individual's consent to something that is potentially a risk for them is laudable, but it's also largely a symbolic gesture when some of the largest and most powerful organisations in the world are duping all of their friends into providing much the same information without their consent or even necessarily their knowledge anyway. The whole business model is fundamentally flawed, and privacy laws are a long way from catching up.
typing to an alexa device should be an option, just like having an AI chat.
Once it is activated, it starts recording and sending audio data to google.
Every such device has a false positive rate on keyphrase activations, and of course the do, there is only limited processing available in those phones (that also try to conserve power), and people tend to mumble sometimes so you have to be a little generous and balance false positives against false negatives - the latter of which people refer to as "shit don't work".
Devices in lawyers' home offices aren't any different. And if the device encounters a false positive and activates, somewhere on some server some recording of your confidential conversation may get stored. Or worse, you buy 100 copies of "The Art of the Deal" off amazon by accident.
Even worse if your client's name, or their wife's or mom's name, is Alexa... or Alexandra/Alexander, which also cause a lot of false positive activations, or so I heard from a friend of a friend with that name.
The only additional danger from an Alexa device is that you are trusting amazon as well, but the core functionality of an Alexa device to always listen for the wake word and communicate to a server if it thinks it heard the wake word locally is the same as what most smartphones have.
Except Amazon was caught with their hands in the cookie jar listening on 'regular' people's private conversations on more than one occasion.
[1] https://www.bloomberg.com/news/articles/2019-04-10/is-anyone... [2] https://news.ycombinator.com/item?id=19629513
Note: intent and expectations matter. A cellphone by itself (without any type of "voice assistant" app or feature) is only intended to record audio when it's being used to make a call. Yes, malicious actors or buggy software could enable the microphone, but that's not the expected behavior of the device. Kyllo v United States is all about what the public understands and expects about a technology.
[1] https://www.cdw.com/product/att-trimline-210-corded-phone/30...
Sure, a bit naive, but I digress. Even if it's illegal, it would be better if it was simply not possible in the first place. It's optionally having that functionality, rather than building solutions considering privacy in the first place.
> without any type of "voice assistant" app
I don't think you can uninstall Siri or Google Assistant on neither iPhone or Android, so that point is kind of null. Only with root or custom roms you'll be able to do that.
I wouldn't trust that whatever people who sit in power doesn't have a way of overriding that.
I think to your point, there is possibly more legal protection around wiretaps than voice assistants. However, how many apps have access to the microphone? Are these apps covered by the same protections as making a phone call using POTS?
Edit: I see you've linked that your phone is an old-school landline, which doesn't really help people understand the legalities around smartphones, which many feel are a requirement to daily life.
The point of the original comment is mostly that devices like echos are expected to always be listening, and this has legal implication.
The biggest profile case where Alexa audio recordings got turned over was during a murder trial after a judge's orders.
I am not entirely clear that the ramifications of Kyllo v. United States are as dire as OP is stating for Alexa-like devices. How exactly do the police freely gain access to a "in general public use" Alexa-like device that is secured through something like an Amazon account and secured WPA password-protected WiFi network? Amazon would have to turn over credentials or the police would have to hack your account or WiFi somehow...
They don't, Kyllo v United States isn't about gaining access to someone's devices. The police used their own thermal camera to search Kyllo's residence:
>> In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. [...] The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house.
That's a neat phone, but we already know pretty much all phone communications are intercepted and recorded. This is why I do all of my communications over IPoAC[1].
Source: worked on project for ~3 years.
When text is “start outdoor walk” then start an outdoor walk workout...
to the watch?
The thermals were 'in plain view' technically but given that the technology was highly expensive and of limited application it was clearly disingenuous if the general public couldn't access it.
Essentially the argument is that just because a signal is emitted doesn't mean that the police have an automatic right to observe or decode it beyond a common observer.
Essentially if they had patrol bots on the street with human level hearing it is still 'in plain view' levels. If they started pointing parabolic microphones or laser mikes at people's houses that would be beyond plain view and into an outright search.
If that suggested interpretation jurisprudence were applied then audio bugs should have long been perfectly legal and not a search as nearly-everyone is already capable of hearing sounds and remembering them.