The information age has changed the way people do business. Virtual offices, multi-office meetings, and work-from-home is now an integral part of the professional employment landscape. In 1972, the manufacturing sector employed approximately 17.5 million people in the United States; in 2010, that sector employed approximately 11.5 million. Yet, during that same time, production value increased by a whopping 270%. This is telling of how technology has enhanced work production.
Simultaneously, there is an increasing trend wherein third parties hold sensitive information about private individuals. Employers often have databases of employee information, and a merchant’s store credit card and other customer information.
More and more, families bring into their homes electronic devices that can record and track personal information. One such device is the Amazon Echo, which has highly-advanced features. As discussed in the first white paper, “Privacy Issue with Amazon Echo,” a person waives the right to privacy once he or she purchases the Echo. But how does this right apply to other people in the home? Do people visiting that house waive their right to privacy by entering the home? Are guests required to consider the possibility that any place they enter may house an Echo? The ongoing “drone slayer” case may be helpful in understanding how far this Constitutional right to privacy goes.
The Amazon Echo
Amazon created the Echo as a smart speaker that answers to the name Alexa. Alexa responds to verbal commands and has numerous “skills.” It can respond to questions and even order pizza online. This device has a highly-developed voice recorder that can capture conversations while music is playing. Amazon continues to develop further features for Alexa.
Right to Privacy
Starting from Louis Brandeis and Samuel Warrens’ 1890 publication “The Right to Privacy” through various United States Supreme Court decisions, U.S. law has upheld its recognition of a person’s constitutional right to privacy. Notably, the 1973 U.S. Supreme Court case of Roe v. Wade applied the right to privacy in declaring state-law abortion bans unconstitutional. Based on the 1965 case of Griswold v. Connecticut—_wherein the Supreme Court declared a state ban on contraceptives unconstitutional because the law violated marital privacy rights—the Supreme Court then applied the privacy rationale to _Roe v. Wade by declaring that a state ban on abortion violates a woman’s right to privacy.
However, as noted in “Privacy Issue with Amazon Echo” (Part I), a person can effectively waive that right to privacy. In Smith v. Maryland, the Supreme Court ruled that people who voluntarily provide information to a third party have no reasonable expectation of privacy. This is known as the third-party doctrine. As such, purchasing an Amazon Echo and placing it in one’s home falls under the third-party doctrine because there cannot be a reasonable expectation of privacy when dealing with a highly developed technological marvel like the Echo.
The Drone Slayer Case
In July of 2015, a sixteen-year-old girl was sunbathing in her backyard when she noticed a drone flying overhead. She alerted her father, William Merideth, who was upset by what he perceived to be the drone’s invasion of privacy. He then pulled out a rifle and shot the drone three times, blasting it out of the sky. Later, four men went to Merideth’s house to confront him about the damaged drone. An argument ensued and the police arrived at the scene. One of the men who confronted Merideth, later identified as David Boggs, claimed that his drone was surveying a friend’s house and was not actually doing anything above Merideth’s property. The police handed the drone over to Boggs and arrested Merideth, charging him with wanton endangerment and criminal mischief for firing his gun in the air.
Eventually, a judge dismissed the charges against Merideth due to an invasion of privacy. Boggs then filed suit in U.S. Federal Court, seeking a declaratory judgment about the rights of aircraft owners versus the rights of property owners. Merideth has since taken the opportunity to market himself as the “drone slayer.”
In May 2016, Popular Mechanics reported that since the drone slayer case, there has been a substantial increase in drone shootings. In most cases, the shooters have not been charged.
The drone slayer case presents some compelling legal discussion. Ostensibly, a person should have a right to privacy in his or her backyard. Based on this alone, Merideth was in the right when he took action against Boggs’ drone.
However, there is a question about a person’s property rights regarding aerial trespass. In the 1946 case of United States v. Causby, a chicken farmer complained that low-flying government aircraft scared the animals to the point where they did not lay eggs, causing him substantial financial damage. The Supreme Court ruled: “__It is an ancient doctrine that at common law ownership of the land extended to the periphery of the universe. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a claim.”
Nonetheless, the Supreme Court explained that flying aircraft can, at times, be in violation of trespassing laws: “We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control over the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run… The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.”
While the Supreme Court did not articulate a specific height that would distinguish between a public highway and private property, it did acknowledge the tension between the two. On the one hand, a property owner has the right “to have full enjoyment of the land;” on the other hand, “the air is a public highway.” Presumably, the facts and circumstances of each individual case will determine whether an aerial flyover infringes on property rights.
This tension is relevant to the drone slayer case. Merideth’s property rights do not expand “to the periphery of the universe.” Those words were relevant in 1946, before the advent of drones. Do private consumer drones change the extent of a landowner’s property rights? Is there no reasonable expectation of privacy in one’s backyard because drones are everywhere? The Causby ruling made clear that before technology, property rights ascended to the heavens. With the advent of technology, property rights changed, thereby squeezing the right to privacy. Does it follow that consumer drone technology has pushed private property rights even lower?
The Right to Privacy in the Information Age
Clearly, technology has the power to limit privacy rights. This directly impacts the application of a reasonable expectation of privacy. The law must now define where a person has a reasonable expectation of privacy. The right to privacy on one’s property is limited because of technology. Does the Echo similarly limit the right to privacy inside people’s homes?
Note that there is a distinction between purchasing an Echo and setting it up in one’s home, and entering a home or building that contains an Echo. As previously settled, purchasing an Echo and bringing it home is waiving a right to privacy in one’s home. Entering a home, e.g. as a guest, that has or might have an Echo is a different question. Is there a reasonable expectation of privacy when an Echo may be in the room?
At the moment, there is probably a reasonable expectation of privacy for a guest in a place that contains an Echo. The Echo is simply not yet common enough in homes or public buildings to shift this expectation of privacy. However, statistics show that Echo sales doubled between 2015 and 2016, highlighting a trend that can potentially shift legal privacy expectations.
The drone slayer case may provide guidance. The rapid expansion of the consumer drone market may shift the reasonable expectation of the right to privacy on one’s property. In early 2015, a research firm projected that annual sales of drones will grow by an astounding thirty-two percent per year between 2015 and 2020. This may factor into similar drone slayer cases. A court ruling that discusses drone technology and the right to privacy may be applicable to Echo technology and the right to privacy.
Veteran litigator and television guest commentator Joseph M. Marrone, Esquire is a leader in the intersecting world of law of technology, civil rights, criminal law, and products liability. He can be reached at 215-732-6700 or 866-732-6700.