The right to privacy is based on the Fourth Amendment to the Constitution, which prohibits “unreasonable searches and seizures” (see “The Fourth Amendment,” below). But the courts are still figuring out how to apply that 18th-century phrase to our 21st-century society.
When the Framers wrote the Fourth Amendment in 1789, they had in mind the British soldiers who before the Revolution could enter colonists’ homes to search and seize their belongings without permission. The Framers could never have imagined smartphones, Fitbits, or Alexa.
The most important ruling so far on the issue of privacy and technology was the Supreme Court’s 2014 decision in Riley v. California. The Court ruled that police need to ask permission or get a warrant from a judge to search someone’s cellphone—just as if they were searching inside someone’s home.
Later this year, the justices will hear a case that could determine whether police need warrants to get tracking information from cellphone companies showing their customers’ locations. Currently, police don’t need warrants for this.
Beyond cellphones, there’s a vast amount of data that’s routinely sent over our devices, and it’s become a rich source for investigators. In many cases, police are not currently required to get a warrant to access this information.
A recent murder case in Bentonville, Arkansas, is getting attention because of the role “smart” devices, including Alexa, have played in the investigation. In November 2015, Victor Collins was found dead in a hot tub in the home of his friend James Bates. Police found signs of a struggle and quickly suspected Bates.
When police looked at the data collected by digital devices in the home, they really began to doubt his innocence. An internet-connected utility meter that automatically records water and electricity usage showed that a huge amount of water was used when Bates said he’d been asleep, suggesting that someone had hosed down the crime scene.