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Julia R. Shackleton Esq.
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Alexa, Amazon Assistant or Government
Informant?
Julia R. Shackleton, Esq.
*
Alexa, are you listening to me? Technology has become an
integral part of one’s everyday life with voice-controlled devices
pervading our most intimate interactions and spaces within the
home. The answers to our questions are now at our fingertips with
the simple roll of the tongue “Alexa,” your very own personal
intelligence assistant. This futuristic household tool can perform
tasks that range from answering simple voice commands to
ordering any online shopping. However, the advent of voice
technology presents a myriad of problems. Concerns arise as
these new devices live in the privacy of our homes while quietly
listening for a “wake word” to record us—whether knowingly or
unbeknownst to the owner or those nearby. This information is
thereafter collected by Amazon and stored on its server.
Traditionally, the Fourth Amendment evolved through case law to
provide citizens with protections when in the intimacy of one’s
home. Despite these protections, the third-party doctrine peels
away a person’s reasonable expectation of privacy when data or
information is exposed to third parties.
*
Julia R. Shackleton, Esq.; Judicial Law Clerk, Rhode Island Supreme Court; Staff
Member, University of Miami Business Law Review, 2017-2018; University of Miami
School of Law, Juris Doctor, 2018; Gettysburg College, Bachelor of Arts in Political
Science, 2015. I would like to personally thank the Honorable Brian P. Stern, Special
Assistant Attorney General Matthew L. LaMountain, and Deputy Clerk Carin B. Miley for
their support and assistance throughout the research and writing process. I would also like
to thank Professor Donald M. Jones for his immeasurable knowledge and guidance. Special
thanks to the Editorial Board of the University of Miami Business Law Review for their
hard work and diligence.
302 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
Thus, the question posed is whether there is any Fourth
Amendment protection when information is digitally shared with
other third parties, such as Amazon’s Alexa? Further, what is
even considered one’s reasonable expectation of privacy in the
modern digital world? Our generation is accustomed to
surrendering a vast amount of personal and private information,
particularly from current whereabouts through Facebook and
Instagram check-ins and recent inquiries that are stored in search
engine histories. This leaves an ascertainable digital trail to track
where you have been, who your friends and family are, and even
what you are thinking. How much of this digital information is
obtainable by the government? Can this futuristic device—
Amazon’s Alexa—that we keep on our nightstands or kitchen
tables actually be used against us?
Part I of this comment will present a series of murder cases that
demonstrate the current legal stance of trial courts on this
particular legal issue. Part II will describe how Alexa works and
why Amazon would want to gather this information. Part III
recapitulates the evolution of Fourth Amendment case law,
particularly the privacy in a search, the admissibility for a man’s
private papers to be used as evidence against himself, and the
sanctity of a man’s home. Part IV discusses third-party doctrine
case law and how this strips away all Fourth Amendment
protections, and Part V analyzes the prior case law and proposes
a modern application to the third-party doctrine.
I. I
NTRODUCTION .............................................................................. 303
A. Alexa, remind me to never ask you how to destroy evidence
of murder ................................................................................. 303
B. Subpoena power over Amazon’s Alexa records. ...................... 305
C. What does Amazon do with all of this stored data? ................. 307
II. F
OURTH AMENDMENT JURISPRUDENCE ......................................... 309
A. The evolution of the Fourth Amendment: Have we lost sight
of the purpose of an unreasonable search? ............................. 310
B. Privacy within the home: Kyllo’s impact ................................. 313
C. Privacy in one’s private papers ............................................... 314
III. T
HE GROWTH AND CURRENT APPLICATION OF THE THIRD-
PARTY DOCTRINE ........................................................................... 316
A. Origination of the third-party doctrine: Couch v. United
States ........................................................................................ 317
B. Banking statements: private papers that are protected? ......... 318
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 303
C. No expectation of privacy in a pen register because people
know of them ............................................................................ 319
IV. R
EASONABLE EXPECTATION OF PRIVACY IN AN INTERNET
INFUSED WORLD
............................................................................ 322
A. Does the Fourth Amendment still carry the same spirit after
the inception of the third-party doctrine and invention of
Alexa? ...................................................................................... 323
B. We still have a reasonable expectation of privacy, but
something needs to change ...................................................... 325
The Liberty Notion .................................................................. 325
The Property Notion ................................................................ 326
V. C
ONCLUSION .................................................................................. 327
I. INTRODUCTION
Technology has evolved at an unprecedented rate. Unfortunately,
Fourth Amendment jurisprudence has not advanced at such great speed.
The emergence of smart device technology has enabled us to live a life of
ease, granting us accessibility to a mass amount of information and
allowing us to always stay connected. Today, we can use a smart device
to automate a text, surf the web, and to navigate to a location we have
never been before. However, it is daunting that these devices are always
tracking us and our search histories are saved as stored data by our
providers and manufacturers.
A. Alexa, remind me to never ask you how to destroy evidence of
murder
Richard Baribault, a man convicted of first degree murder, inter alia,
is an exemplar of how invasive and incriminating smart devices can be.
1
In the early hours of the morning on August 1, 2015, a sailing nomad,
affectionately known in the community as “Captain Fredy,” was strangled
to death on his boat in Warwick Cove Marina, Rhode Island.
2
Captain
Fredy’s body was not discovered until fifteen hot summer days later, after
the body was almost unrecognizable due to its decomposition.
3
As
1
Ethan Hartley, Baribault found guilty in murder of Capt. Fredy, WARWICK BEACON
(Jul. 5, 2017 12:45 PM), http://warwickonline.com/stories/baribault-found-guilty-in-
murder-ofcapt-fredy,125784.
2
Id.
3
Id.
304 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
Warwick Police investigated the scene, the only telling evidence was
motion-sensor video surveillance that, when activated, captured random
moments during the murder and post clean-up.
4
However, due to the boat’s
far distance from the camera and the distortion of the image, the murderer
was unascertainable.
5
As Warwick Police interviewed Captain Fredy’s marina neighbors,
the investigators accrued a litany of individuals whom might have
information about the murder.
6
Among those individuals was Richard
Baribault. As law enforcement began interviewing Baribault,
7
they asked
for Baribault’s consent to search his phone.
8
The phone extraction revealed
that Baribault had a Google application on his phone.
9
The extraction also
provided the password to Baribault’s Google account.
10
The detectives
then logged into Baribault’s account from a separate computer, which
rendered access to his account.
11
The detectives listened to Baribault’s
automated recordings of his google searches and were able to identify his
voice. His inquiries were as follows:
On August 3, 2015 at 7:56 am – Does bleach kill
everything including skin cells?
On August 3, 2015 at 8:11 am – Boat moto mechanic in
Warwick, Rhode Island?
On August 6, 2015 at 12:14 pm – What towns have
garbage days Friday morning?
On August 6, 2015 at 12:14 pm – What towns in Rhode
Island have garbage days garbage pickup Friday
morning?
On August 8, 2015 at 4:09 pm – Where would Warwick
Harbormaster take a towed boat?
12
4
Id.
5
See id.
6
Warwick Police Department Incident Report #15-3829-OF.
7
Of note, Law Enforcement in Rhode Island is not required to obtain a warrant to seize
such information. However, it is common practice for the police force to obtain a warrant.
Likewise, the Attorney General’s office of Rhode Island also engages in same practice.
Moreover, each state has its own standard protocol, but this requirement is not compelled
by any form of legal precedent.
8
Warwick Police Department Incident Report #15-3829-OF.
9
Id.
10
Id.
11
Id.
12
Id.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 305
Thereafter, the police obtained a search warrant to acquire from his
provider his cell phone data—such as, call records, location data, and other
cell phone content.
13
Baribault’s cell phone, like all cell phones, was
tracking his location at every second and could show his location based on
the coordinates that the closest cell tower was tracking.
14
Ultimately, the
location information provided the most incriminating evidence as
Baribault’s location matched the location and the time that the video
surveillance activated during the time of the murder and post clean-up.
15
However, the voice recordings of the previously listed inquiries were
played during his trial and, most likely, had one of the greatest impacts on
the jury. Without this information from Baribault’s smart device, there
may have never been enough information to track him and solve this
murder. Yet, finding the murderer was at the expense of his own privacy.
Indeed, Baribault consented to search his phone, but it is unclear if
Baribault was fully aware of the information he surrendered to the
police—GPS location tracking his every second, search engine history,
and overly incriminating voice recording inquiries. The other question this
case raises is whether the reasonable person is aware that information,
such as the location that is tracked every second, is stored information that
is obtainable by the government. Moreover, information that can be
obtained even without a warrant in some jurisdictions.
B. Subpoena power over Amazon’s Alexa records.
In another murder case, State v. Bates, officers from the Bentonville,
Arkansas, Police Department were placed in a similar situation—an
unsolved murder case coupled with smart home technology located at the
scene of the crime.
16
As detectives investigated the murder, they found an
Amazon Echo Dot.
17
After the discovery of the Amazon Echo, law
enforcement seized the Echo and subpoenaed Amazon, claiming there was
reason to believe Amazon.com was in possession of records associated
with the homicide.
18
13
Ethan Hartley, Baribault found guilty in murder of Capt. Fredy, WARWICK BEACON
(Jul. 5, 2017 12:45 PM), http://warwickonline.com/stories/baribault-found-guilty-in-
murder-ofcapt-fredy,125784.
14
See id.
15
State of Rhode Island v. Richard Baribault, K1-2016-0069B
16
See generally Complaint, State v. Bates, 2016 WL 7587405 (Ark. Cir. Aug. 26, 2016)
(No. CR20160370).
17
Amy B. Wang, Police Land Amazon Echo Data in Quest to Solve Murder, CHICAGO
T
RIBUNE (March 9, 2017, 11:08 AM), http://www.chicagotribune.com/bluesky/technology
/ct-amazon-echo-murder-wp-bsi-20170309-story.html.
18
Id.
306 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
Law Enforcement demanded records of the Amazon Echo device,
alleging that the Amazon Echo stored recorded statements that would
contain highly probative evidence of the incident—specifically, evidence
that would discredit Bates’ alibi. Additionally, Bates’ water meter
revealed that a substantial amount of water was used right after the murder
was suspected to occur.
19
This led investigators to believe the patio and
hot tub was hosed down prior to the arrival of the police.
20
Additionally,
investigators learned that music was being played on the back patio at the
time of Collin’s death that could have been played by Amazon’s personal
intelligence assistant, Alexa.
21
Amazon initially opposed the warrant, claiming that the police
department did not affirmatively establish that their investigation
outweighs the customer’s privacy rights.
22
Specifically, Amazon stated,
the company “will not release customer information without a valid and
binding legal demand properly served on us.”
23
The Brenton County
prosecutor moved to compel Amazon to provide the data that Bates’ Echo
may have collected.
24
According to court documents, Bates’ attorney did
not object to the motion and agreed that Bates would voluntarily provide
opposing counsel with the data collected.
25
Later that day, Amazon
delivered the data per the customer’s consent.
26
Although Bates voluntarily consented to the production of the
Amazon Echo records, this personal device that records our mental
impressions and inquiries, overheard conversations, and other unknown
statements is attainable information that the government can seize and use
against us under the third-party doctrine. Nonetheless, most people in
19
Nicole Chavez, Arkansas Judge Drops Murder Charge in Amazon Echo Case, CNN
(December 2, 2017, 12:52 AM), http://www.cnn.com/2017/11/30/us/amazon-echo-
arkansas-murder-case-dismissed/index.html.
20
Eliott C. McLaughlin, Suspect Oks Amazon to Hand Over Echo Recordings in Murder
Case, CNN (April 26, 2017, 2:52 PM), http://www.cnn.com/2017/03/07/tech/amazon-
echo-alexa-bentonville-arkansas-murder-case/; see also Eliott C. McLaughlin & Keith
Allen, Alexa Can You Help with This Murder Case? CNN (December 28, 2016, 8:48 PM),
https://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-
case-trnd/index.html.
21
McLaughlin, supra note 20.
22
Id.
23
Colin Dwyer, Arkansas Prosecutors Drop Murder Case That Hinged on Evidence
From Amazon Echo, NPR (November 29, 2017, 5:42 PM), https://www.npr.org/sections/
thetwo-way/2017/11/29/567305812/arkansas-prosecutors-drop-murder-case-that-hinged-
on-evidence-from-amazon-echo (citing Arkansas Judge Drops Murder Charge in Amazon
Echo, AP NEWS (November 29, 2017), https://apnews.com/
f66ee9c4e2514d4789a50324860a9c29).
24
Id.
25
Id.
26
Id.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 307
society are oblivious to the third-party doctrine and the accessibility the
government has over our private matters. Therefore, consumers are often
uncertain of what privacy protections apply when it involves this
extremely invasive technology that lives in the presence of one’s home.
Amazon’s Alexa recordings have a similar nature to the traditional
wiretap, however; Alexa’s ability to answer any and all of our questions
reveals a greater deal of information than a mere recording from a
microphone. It reveals our questions, mental processes, and inner thoughts
that ultimately reflect a wealth of information concerning a person’s
familial, political, professional, and religious affiliations.
Arguably, this information demands greater privacy protections than
the home. However, the Fourth Amendment fails to provide the adequate
privacy protection for smart technology devices. Justice Scalia in Kyllo v.
United States proclaimed that “all details [in the home] are intimate
details, because the entire area is held safe from prying government
eyes.”
27
Yet, Amazon’s Alexa—a personal effect within the home—does
not receive such protection. In light of the advancement of technology, the
Court may have to reconsider Fourth Amendment jurisprudence in order
to afford society with its reasonable expectation of privacy when using
these invasive digital devices, especially in the sanctity of one’s home.
C. What does Amazon do with all of this stored data?
Although Alexa provides convenience to its users, it undermines and
diminishes one’s privacy through its third-party interconnectivity. In order
to get full use out of Alexa’s skills, the user will ask Alexa’s queries or
commands. Alexa’s responses are answered through her connection to
third-party services, such as, but not limited to, other smart home devices,
apps, or any website that Alexa accesses. The information that each user
provides to Alexa is also voluntarily given to every other third party that
Alexa uses in order to answer the query or command.
28
However,
unbeknownst to most Alexa users, every Alexa owner entered into an
agreement with Amazon’s Digital Services LLC before they even used
Amazon’s Alexa.
29
This agreement renders all information to Amazon and
other third-party users when using this smart device. Amazon even
promotes that, “Alexa is Amazon’s cloud-based voice service available on
27
533 U.S. 27, 37 (2001) (alteration in original).
28
Why Alexa?, AMAZON, https://developer.amazon.com/alexa (last visited January 26,
2018).
29
Alexa Terms of Use, AMAZON, https://www.amazon.com/gp/help/customer/
display.html?nodeId=201809740, (last visited January 26, 2018).
308 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
tens of millions of devices from Amazon and third-party device
manufacturers.”
30
Alexa is controlled by the voice of each user.
31
During the user’s voice
interactions, Alexa streams the audio to the Amazon cloud.
32
Amazon then
processes and retains each user’s voice command or query in the Amazon
server,
33
including your voice inputs, music playlists, Alexa’s to-dos, and
shopping lists.
34
Moreover, this information is also transmitted to the third-
party service or auxiliary product that is related to the command or quest.
35
In the Alexa terms of use agreement, Amazon informs the reader that
Amazon may exchange related information to a third-party service.
36
For
instance, if a user simply asks, “Alexa, what is the weather like today?”
Amazon will relay your current zip code to the third party weather service
it uses to answer your query.
37
Although this example seems minor in
scale, further use of Alexa creates an outgrowth of information that is
given to other third-party networks and all networks that the third party
associates with.
38
Amazon warns those who even bother to read its terms
and use agreement that, “[y]our use of any Third Party Service is subject
to this Agreement and any third party terms applicable to such Third Party
Service . . . [i]f you do not accept the third party terms applicable to a
Third Party Service, do not use that Third Party Service.”
39
However, the issue is that most of Alexa’s owners have not even read
Alexa’s Terms of Use Agreement, let alone know that Alexa’s
interconnection activity subjects them to other companies’ conditional Use
of Terms Agreements. Every time a person uses Alexa, they are disclosing
information, which inevitably turns into a treasure trove of information
that has the possibility to circulate to public websites or allows for
government tracking.
40
Furthermore, Amazon’s Terms of Use Agreement
specifically states, “[w]hen using a Third Party Service, you are
responsible for any information you provide to the third party. Amazon
has no responsibility or liability for Third Party Services. Publishers of
30
AMAZON, supra note 28.
31
AMAZON, supra note 29.
32
Id.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id.
38
Steven I. Friedland, Drinking from the Fire Hose: How Massive Self-Surveillance
from the Internet of Things is Changing the Face of Privacy, 119 W.
VA. L. REV. 891, 897
(2017).
39
AMAZON, supra note 29.
40
Friedland, supra note 38, at 392.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 309
Third Party Services may change or discontinue the functionality or
features of their Third Party Service.”
41
II. FOURTH AMENDMENT JURISPRUDENCE
The Fourth Amendment declares, it is “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . “
42
The Fourth Amendment implements
constitutional limits on law enforcement’s authority to conduct a “search”
or “seizure.”
43
A “search” transpires when: (1) the intrusion constitutes a
common law physical trespass and invades a “constitutionally protected
area”
44
within the bounds of the Fourth Amendment;
45
(2) for the purpose
of obtaining information or attempting to find something;
46
and (3) the
reasonable expectation privacy test survives despite a lack of physical
trespass.
47
Fourth Amendment protections have evolved from those originally
grounded in notions of physical trespass.
48
Over time, the pendulum began
to swing away from property notions and towards a more individualistic
approach, which sought to protect the person, not the place.
49
The
transformation of the Fourth Amendment’s underlying rationale was
largely due to the advances in technological development.
50
It was not
necessarily the physical intrusion itself that violated the Fourth
Amendment, but rather whether a person manifested a subjective
expectation of privacy in the object of the challenged search and whether
society was willing to recognize that expectation of privacy as
reasonable.
51
However, under Fourth Amendment jurisprudence, there is
no reasonable expectation of privacy in information voluntarily disclosed
to third parties.
52
This note will analyze the Fourth Amendment protection
41
AMAZON, supra note 29.
42
U.S. CONST. amend. IV.
43
Riley v. California, 134 S. Ct. 2473, 2492 (2014).
44
“Constitutionally protected areas” includes places such as one’s person, houses,
papers, and effects. U.S. CONST. amend. IV.
45
Berger v. New York, 388 U.S. 41, 78 (1967) (Black, J. dissenting); see also United
States v. Jones, 565 U.S. 400 (2012).
46
Clark D. Cunningham, A Linguistic Analysis of the Meanings of “Search” in the
Fourth Amendment: A Search for Common Sense, 73
IOWA L. REV. 541 (1988).
47
Katz v. United States, 389 U.S. 347, 353 (1967).
48
See Olmstead v. United States, 277 U.S 438 (1928).
49
See generally Katz, 389 U.S. at 347 (1967).
50
Id.
51
Id.
52
Smith v. Maryland, 442 U.S. 735, 744 (1979).
310 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
in light of the development of smart home devices, such as Amazon’s
Alexa.
A. The evolution of the Fourth Amendment: Have we lost sight of
the purpose of an unreasonable search?
Throughout the course of Fourth Amendment jurisprudence, the
United States Supreme Court has varied in its interpretation of what the
Fourth Amendment protects. The original concept of a Fourth Amendment
search was illustrated by the Court in Olmstead v. United States in 1928.
53
The petitioners in Olmstead were convicted in the District Court for the
Western District of Washington for conspiring to violate the National
Prohibition Act by unlawfully possessing, transporting and importing
intoxicating liquors and maintaining nuisances, and by selling intoxicating
liquors.
54
The information that led to the discovery of the conspiracy, along with
its nature and extent, was obtained by intercepting telephone conversations
of the conspirators by a federal officer.
55
The interceptions occurred from
small wires that were inserted along the outside telephone wires from the
residences of the petitioners and those leading from their office.
56
The
insertions were made without trespassing on the petitioners’ property, as
the wiretapping insertions were affixed on public streets close to the
petitioners’ homes.
57
The Court found that there was no search under the
Fourth Amendment because the electronic eavesdropping occurred
without physical intrusion.
58
The crux of Justice Taft’s analysis hinged on
the inquiry of whether the underlying action by the federal officers
happened inside the home.
59
Thus, because the evidence seized was not
obtained by physical intrusion into one’s home, but rather obtained only
though hearing—no Fourth Amendment violation occurred.
60
At this time,
the analysis of the Fourth Amendment search inquired into whether there
was physical intrusion on one’s property; thus, the Fourth Amendment
protected property, not the person.
The precedent set forth by the Olmstead Court was later overruled in
Katz v. United States in 1967.
61
The petitioner in Katz was convicted in
the District Court for the Southern District of California for transmitting
53
See generally Olmstead, 277 U.S. at 438.
54
Id. at 455.
55
Id. at 456.
56
Id. at 456–57.
57
Id. at 457.
58
Id. at 464.
59
Olmstead v. United States, 277 U.S 438, 464 (1928).
60
Id.
61
Katz v. United States, 389 U.S. 347, 353 (1967).
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 311
wagering information by telephone from Los Angeles to Miami and
Boston in violation of a federal statute.
62
During trial, the Government was
allowed to introduce evidence that the petitioner objected to on grounds of
violation of his Fourth Amendment rights.
63
Specifically, the evidence in
question involved federal agents attaching an electronic listening and
recording device to the outside of a public telephone booth, which the
petitioner placed his calls from.
64
The Katz Court renounced the
underpinnings of the Olmstead Court and held that physical trespass is no
longer the controlling law under the Fourth Amendment.
65
The Katz Court
noted that the Government’s actions—electronically listening and
recording the petitioner’s conversation—violated the privacy upon which
he “justifiably relied while using the telephone booth. Such actions
constituted a ‘search and seizure’ within the meaning of the Fourth
Amendment.”
66
Importantly, the Court asserted that there was no
constitutional significance to the fact that the electronic device did not
penetrate or physically invade the phone booth.
67
Justice Harlan, writing a separate concurring opinion in Katz, set forth
a two-prong test, which the Supreme Court later endorsed in Bond v.
United States.
68
Determining whether a search is reasonable requires: (1)
the person to have manifested an actual subjective expectation of privacy;
and (2) this expectation is one that society is prepared to recognize as
reasonable.
69
Concerning the first prong of this test, Justice Harlan
emphasized how one’s personal aspect of privacy and their own subjective
expectations of privacy can be inferred from their conduct.
70
Regarding
the facts of Katz, Justice Harlan found it significant that the petitioner shut
the door behind him when using the phone booth, thus demonstrating his
expectation that his conversation will be private.
71
The Katz framework
changed the analysis of whether a search is reasonable to focus on the
subjective expectation of privacy. This shifts away from the past emphasis
of property notions. The Katz Court found that the petitioner did in fact
manifest a subjective expectation of privacy as he entered the phone booth
in an attempt to exclude the “uninvited ear.”
72
62
Id.
63
Id.
64
Id. at 348.
65
Id. at 353.
66
Id.
67
Id.
68
See Bond v. United States, 529 U.S. 334, 338 (2000).
69
Katz, 389 U.S. at 361 (Harlan, J., concurring).
70
Id.
71
Id.
72
Id. at 352.
312 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
However, the notions of physical intrusion may have been resurrected
in United States v. Jones.
73
The United States Supreme Court found that
the government conducted an unlawful search when federal agents placed
a GPS tracking device on the car of the respondent, which tracked the
movements of the respondent over the course of 28 days.
74
The respondent
filed a motion to suppress the evidence gained from the GPS, as the
information collected not only his movements on public streets, but also
when his vehicle was parked inside the garage of the home. In the majority
opinion, Justice Scalia revived the property notion of an unreasonable
search by stating, “as we have discussed, the Katz reasonable-expectation-
of-privacy test has been added to, not substituted for, the common-law
trespassory test.”
75
Although this case was ultimately decided on trespass notions, Justice
Sotomayor notified the Court in her concurrence about the detrimental
effects of the property-based test in the future.
76
Sotomayor opined that,
due to the surge in use of technology, this test potentially chills one’s
associational and expressive freedoms.
77
Significantly, this is imperative
when considering the existence of a reasonable societal expectation of
privacy in the sum of one’s public movements.
78
Sotomayor additionally
foretold the privacy concerns as it relates to Amazon’s Alexa and the third-
party doctrine:
More fundamentally, it may be necessary to reconsider
the premise that an individual has no reasonable
expectation of privacy in information voluntarily
disclosed to third parties. This approach is ill suited to the
digital age, in which people reveal a great deal of
information about themselves to third parties in the course
of carrying out mundane tasks. People disclose the phone
numbers that they dial or text to their cellular providers;
the URLs that they visit and the e-mail addresses with
which they correspond to their Internet service providers;
and the books, groceries, and medications they purchase
to online retailers.
79
Justice Sotomayor notably indicated that the third-party doctrine
needs to be reexamined, particularly as we enter this new world of digital
73
565 U.S. 400 (2012).
74
Id. at 402.
75
Id. at 409.
76
Id. at 414.
77
Id. at 416.
78
Id.
79
Id. at 417.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 313
technology that possesses the power of retrieving detailed information,
such as what we are thinking, who are we intimately involved with, or
where we are located. In light of the third-party doctrine’s broad power,
an officer can circumvent a warrant through subpoenaing information of
third-party service parties. Thus, this doctrine not only enables law
enforcement to arbitrarily exercise police surveillance, it encourages it.
B. Privacy within the home: Kyllo’s impact
As noted above, Amazon’s Alexa is commonly found within the
owner’s home, either in one’s kitchen, living room, or nightstand. This
presents a problem because the personal assistant is kept within the
intimacy of one’s home: Does the third-party doctrine penetrate through
one’s home and allow for the government to seize data containing
conversations, sometimes conversations that were unknowingly recorded?
Moreover, these personal assistants, which are pervading into everyday
life through the use of other smart home technologies, can be used as
surveillance tools in order to investigate any individual. Typically, courts
have honored the home and what occurs therein, holding it is an intimate
place of privacy under the Fourth Amendment.
In Kyllo v. United States, the Supreme court determined whether the
use of a thermal-imaging device aimed at a private home from a public
street to detect relative amounts of heat within a home constitutes a search
under the Fourth Amendment.
80
The Court persisted with, “‘[i]t would be
foolish to contend that the degree of privacy secured to citizens by the
Fourth Amendment has been entirely unaffected by the advance of
technology.’”
81
Ultimately, the Court found that the information regarding
the interior of the home that could not have been obtained without physical
intrusion into a constitutionally protected area constitutes a search—and
especially so when the technology in question is not in general public
use.
82
The Court reasoned that accepting the information attained by the
thermal-imaging device would “leave the homeowner at the mercy of
advancing technology . . . that could discern all human activity in the
home.”
83
Specifically, the Court described the intimate details advancing
technologies could pick up, “for example, at what hour each night the lady
of the house takes her daily sauna and bath—a detail that many would
consider ‘intimate’; and a much more sophisticated system detect nothing
more intimate than the fact that someone left a closet light on.”
84
80
533 U.S. 27, 30 (2001).
81
Id. at 33.
82
Id. at 34.
83
Id. at 35–36.
84
Id. at 38.
314 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
Interestingly, this is exactly the issue with advancing technologies,
like Alexa, and the government’s ability to search troves of data controlled
by companies, like Amazon. Now, under the third-party doctrine, an
officer does not even need to bother with obtaining a search warrant and
searching the house because the law already allows the government to
search the data of any third-party service. Particularly with Alexa though,
intimate details are potentially traceable from this personal assistant. For
instance, the device could accidentally awake and record a vehement
discussion between husband and wife.
Conversely, the Kyllo Court also stated, “the Fourth Amendment
protection of the home has never been extended to require law
enforcement officers to shield their eyes when passing by a home on public
thoroughfares.” In relation to personal assistant devices, alternatively, an
individual does voluntarily welcome these technologies into their home.
Thus, under their own assumption of risk, they are arguably accountable
for any consequences that pursue.
C. Privacy in one’s private papers
Prior to the inception of the third-party doctrine, the United States
Supreme Court decided that it was a violation of the Fourth Amendment
to compel an individual to produce his or her own private papers.
85
In
Boyd, several cases of glass were confiscated from the defendants pursuant
to customs revenue law.
86
Thereafter, the district attorney subpoenaed the
defendants to produce invoices concerning the seized plates of glass.
87
However, the defendants raised the question of whether it was
constitutional under the Fourth Amendment to compel the defendants to
produce private papers that could be used as evidence against him for the
purposes of an unreasonable search and seizure within the Fourth
Amendment.
88
The Boyd Court held that the Fourth Amendment protects against the
invasion into a person’s private matters and will not allow the government
to compel a person to produce private papers.
89
The Court delved into the
history and reasoning behind the Fourth Amendment unreasonable search
and seizures, specifically the issuance of the writs of assistance.
90
The
practice enabled revenue officers to issue writs of assistance, which
empowered them to use arbitrary and sole discretion to search suspected
85
Boyd v. United States, 116 U.S. 616 (1886).
86
Id. at 617.
87
Id.
88
See id. at 619.
89
Id. at 624.
90
Id. at 625.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 315
places for smuggled goods. James Otis pronounced it was the “worst
instrument of arbitrary power, the most destructive of English liberty and
the fundamental principles of law, that ever was found in an English law
book . . . [because] the liberty of every man [was placed] in the hands of
every petty officer.”
91
The writs of assistance authorized customs officers
to enter and inspect houses without any warrant.
92
Moreover, customs
officers could obtain a writs of assistance without even alleging any illegal
activity that would precondition the search.
93
The Boyd Court noted that it
was the writ of assistance that inaugurated the resistance of the colonies
against Great Britain, which ultimately led to the Fourth Amendment’s
unreasonable searches and seizures.
94
The Court further noted that the
Fourth Amendment applies to all invasions on the part of the government
involving the sanctity of a man’s home and the privacies of his life.
95
Notably, the Court indicated that is it not the physical trespass, such
as rummaging through a person’s drawers, that constitutes an
unreasonable search.
96
However, it is “the invasion of his indefeasible
right of personal security, personal liberty, and private property, where that
right has never been forfeited by his conviction of some public offense.”
97
This notion of personal liberty aligns with the underlying premise of Katz,
which endorses the concept that the Fourth Amendment protects the
person, not the place.
98
Specifically pertaining to the facts surrounding Boyd, it is the forcible
and compulsory extortion of a man’s own testimony through his private
papers—used as evidence against him—that contradicts the Fourth and
Fifth Amendments.
99
The Court reasoned that the compulsory production
of a man’s private paper to be used in evidence against him is equivalent
to compelling him to be a witness against himself in contradiction of the
Fifth Amendment.
100
In light of the Fourth Amendment, the compulsory
91
Id. (quoting Cooley, Const. Lim. 301–303; John Adams, vol. 2, Appendix A, pp. 523–
525; vol. 10, pp. 183, 233, 244, 256, etc., and in Quincy’s Reports, pp. 469–482; and see
Paxton’s Case, Id. 51–57).
92
See generally William J. Cuddihy, The Fourth Amendment: Origins and Original
Meaning, 602-1791, at 758–59 (1990) (unpublished Ph.D. dissertation, Claremont
Graduate School) (available from UMI Dissertation Services, 300 N. Zeeb Road, Ann
Arbor, Michigan).
93
Id. at 762–63.
94
See Boyd, 116 U.S. at 627.
95
Id. at 630.
96
Id.
97
Id.
98
Compare Katz v. United States, 389 U.S. 347, 368 (1967), with Boyd, 116 U.S. 630.
99
See generally Boyd, 116 U.S. 630.
100
Id. at 633.
316 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
production that coerces an individual to turn over their private papers
constitutes an unreasonable search and seizure.
101
III. THE GROWTH AND CURRENT APPLICATION OF THE THIRD-
PARTY DOCTRINE
Under the third-party doctrine, an individual does not have a
reasonable expectation of privacy regarding the information that he or she
voluntarily disclosed to a third-party.
102
This doctrine initiated in the
1970’s and was solidified by Smith v. Maryland in 1979.
103
Currently, the
application of the third-party doctrine strips an individual of his or her
Fourth Amendment protection, which allows the government to access
information rendered to a third party without a warrant.
104
Although at first
glance this case law precedent may not seem alarming, modern technology
requires an individual to surrender a digital trail of their daily life in order
to participate in our technological world. Knowing the government can
access this information without a warrant leaves the masses uneasy.
Almost all of our personal information is disclosed to a third-party
service provider. For instance, our personal and intimate text message
conversations between our significant other or close friends; our e-mails
to our superiors regarding potentially privileged work matters; our credit
card statements and banking transactions; and our check-ins through
Facebook and Instagram all reveal a wealth of information about our
personal lives without any form of protection. Under the Katz test, the
standard remains that the reasonable person must have a legitimate
expectation of privacy in the activity that is searched for purposes of the
Fourth Amendment.
105
But, is it that the average person in today’s world
does not value their right to privacy by constantly sharing intimate details
about their life through Snapchat and other third-party service providers?
Or is it that the right to privacy is no longer existent for those who
participate in this digital world?
101
Id. at 622.
102
Note, If These Walls Could Talk: The Smart Home and The Fourth Amendment Limits
of The Third Party Doctrine, 130 H
ARV. L. REV. 1924 (2017).
103
See United States v. Couch, 409 U.S. 322 (1973); see also Smith v. Maryland, 442
U.S. 735 (1979).
104
See Orin S. Kerr, The Case for the Third Party Doctrine, 107 MICH. L. REV. 561, 563
(2009) (defining the third party doctrine).
105
Katz, 389 U.S. at 361.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 317
A. Origination of the third-party doctrine: Couch v. United States
After the establishment of the reasonable expectation test in Katz, the
Court was faced with the question of whether the Fourth Amendment
protects information conveyed to a third party. The third-party doctrine
originated in Couch v. United States in 1973.
106
After the petitioner was
suspected for a potential tax liability, the Government summoned the
petitioner’s accountant to provide all records, bank statements, cancelled
checks, workpapers, and other pertinent documents pertaining to the tax
liability of the petitioner.
107
The petitioner raised the argument that the
confidential nature of the accountant-client relationship and,
consequently, her expectation of privacy that existed when she handed
over her private records protects her under the Fourth and Fifth
Amendment from their production.
108
The Court found that the
accountant-client privilege does not exist under federal law and,
furthermore, no state-created privilege has been acknowledged in federal
cases.
109
The Couch Court continued and addressed the Fourth Amendment
precedent set forth in Boyd concerning an individual’s private papers.
110
The Court noted that there is a minimal expectation of privacy where
records are voluntarily given to an accountant while under the
understanding that mandatory disclosure is required for an income tax
return.
111
Furthermore, the information disclosed was in the possession of
the third-party service, the accountant, not the petitioner.
112
Therefore, the
petitioner cannot reasonably claim Fourth Amendment protection for the
purposes of privacy.
113
The Couch Court also addressed the argument that
the Fifth Amendment protects compulsory production of the petitioner’s
documents because it is a form of self-incrimination.
114
However, the
Court reasoned that the privilege against self-incrimination is an intimate
and personal one, which defers to a private inner sanctum of individual
feeling and thought, not to information that may incriminate an
individual.
115
Ultimately, under the Couch ruling, personal information
106
409 U.S. 322 (1973).
107
Id. at 323.
108
Id. at 335.
109
Id.; see also Falsone v. United States, 205 F.2d 459, 463–64 (6th Cir. 1951); see also
Himmelfarb v. United States, 175 F.2d 924, 939 (9th Cir. 1949).
110
Couch, 409 U.S. at 335.
111
Id.
112
Id.
113
Id.
114
Id. at 323.
115
Id. at 328. (quoting Justice Holmes “a party is privileged from producing the evidence,
but not from its production.”) (citing Johnson v. United States, 228 U.S. 457, 458 (1913)).
318 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
that is voluntarily given to a third party renders an individual with no
expectation of privacy, which is daunting precedent considering today’s
digital world in which mass amounts of information are transmitted by
third-party service providers.
116
B. Banking statements: private papers that are protected?
The Court again addressed the question of the third-party doctrine in
United States v. Miller, where the government accessed the suspect’s
banking statements and records—without a warrant.
117
The Miller Court
denied the defendant’s motion to suppress subpoenaed banking documents
because the Court found there was no legitimate Fourth Amendment
interest that was implicated by the government’s investigation;
specifically, there was no governmental intrusion into a constitutionally
protected zone of privacy that the defendant relied on.
118
The Miller Court
highlighted the Katz expectation of privacy test and quoted, “in Katz the
Court also stressed ‘what a person knowingly exposes to the public . . . is
not subject of Fourth Amendment protection.’”
Thus, it reaffirmed that information conveyed to a third-party service
provider is not warranted Fourth Amendment protection. The Court
distinguished the subpoenaed banking records from the documents in
Boyd, indicating that the banking statements and records here do not
constitute “private papers.”
119
Rather, the documents consist of business
records that belong to the bank; therefore, the defendant cannot assert
ownership nor possession on the claim for an illegal seizure.
120
The Court
specifically stated,
The depositor takes the risk, in revealing his affairs to
another, that the information will be conveyed by that
person to the Government. This Court has held repeatedly
that the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the
information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed
in the third party will not be betrayed.
121
116
Note, supra note 102, at 1929.
117
425 U.S. 435, 437 (1976).
118
Id. at 440.
119
Id.
120
Id. at 442.
121
Id. at 443 (citing United States v. White, 401 U.S. 745, 751-52 (1971); Hoffa v. United
States, 385 U.S. 293, 300 (1966); Lopez v. United States, 373 U.S. 427 (1963)).
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 319
Therefore, what actually is a person’s reasonable expectation in a
world where, in order to subsist, one must rely on other third-party service
providers to maintain a job, pay taxes, and communicate with friends and
family?
Although the defendant in Miller did voluntarily and knowingly
transact with the bank, it is imperative to note that the documents requested
in Miller are the functional equivalent of the private papers compelled in
Boyd. The private papers in Boyd were invoices constituting the sale or
record of the fraudulently purchased glass.
122
Alternatively, the documents
in Miller consisted of deposit slips and copies of checks.
123
Both
documents comprise of sale transactions; however, the compelled
documents in Miller involved a third party. Arguably, the main difference
is caused by the modernization and accessibility of banking. Today, an
individual can remotely deposit a personal check online or through a
picture on their mobile phone.
124
Additionally, restricted banking hours no
longer exist due to the creation of ATM machines.
125
Indeed, the banking
statements in Miller are not “private papers,” but it is vital to note the
evolution of modern technology subjects a person to have no Fourth
Amendment protections under the current precedent of the third-party
doctrine. Mainly, one must either surrender their Fourth Amendment right
or the courts must conclude that today’s digital world affects one’s
expectation of privacy.
C. No expectation of privacy in a pen register because people
know of them
The United States Supreme Court solidified the third-party doctrine in
Smith v. Maryland, where the Court suppressed bank records and found
that the government’s use of a pen register, a device that records the
numbers dialed by a phone, did not constitute a search.
126
After the victim
received a number of harassing phone calls, law enforcement placed a pen
register on the defendant’s telephone without a warrant.
127
The defendant
queried whether the installation and use of the pen register by the
122
Boyd v. United States, 116 U.S. 616 (1886).
123
Miller, 425 U.S. at 437.
124
How Do You Deposit a Check With your Smartphone or Tablet? FDIC, https://www.
fdic.gov/consumers/consumer/news/cnsum16/photos.html (last visited January 26, 2018).
125
Linda Rodriguez McRobbie, The ATM is Dead. Long Live the ATM! THE
SMITHSONIAN (January 8, 2015), https://www.smithsonianmag.com/history/atm-dead-
long-live-atm-180953838/.
126
442 U.S. 735 (1979).
127
Id. at 737.
320 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
telephone company at the request of law enforcement constituted an
unreasonable search and seizure.
128
The Court initiated its analysis with the application of the Katz test,
affirming that the determination of an unreasonable search hinges on
whether a person invoking its protection can claim a justifiable,
reasonable, or legitimate expectation of privacy that was invaded by the
government.
129
The Court then analyzed the nature of the activity that was
investigated by the government when the device was installed.
130
In
regards to an actual expectation of privacy, subscribers are aware that they
must convey phone numbers to the telephone company in order to
complete their phone calls.
131
Moreover, it is well known that phone
companies must make permanent records of the numbers they dial in order
to generate permanent billing records.
132
Pen registers are also a common
use of practice by telephone companies for billing purposes.
133
However,
“[while] most people may be oblivious to a pen register’s esoteric
functions, they presumably have some awareness of one common use.”
134
The Court opined that this must be common knowledge since most phone
books inform subscribers in “Consumer Information” that they have the
ability to identify unwelcome and troublesome phone calls.
135
The Smith Court also found there was no expectation of privacy in a
dialed phone number because the pen register was installed on telephone
company property at the telephone company’s central offices. The Court
found the defendant cannot claim that his property was invaded or that the
police intruded in a constitutionally protected area.
136
Additionally, the
Court noted that the information discovered by the pen register is minimal,
such that they do not expose the substantive contents of the conversation
between the caller and recipient.
137
Therefore, under Smith’s precedent, an
individual has no expectation of privacy from a warrantless government
128
Id. at 738.
129
Id. at 739; see also Rakas v. Illinois, 439 U.S. 128, 142 (1978); id. at 150-51
(concurring opinion); id. at 164 (dissenting opinion); see also United States v. Chadwick,
433 U.S. 1, 7 (1977); see also United States v. Miller, 425 U.S. 435, 442 (1976); see also
United States v. Dionisio, 410 U.S. 1, 14 (1973); see also Couch v. United States, 409 U.S.
322, 335–36 (1973); see also United States v. White, 401 U.S. 745, 752 (1971) (plurality
opinion); see also Mancusi v. DeForte, 392 U.S. 364, 368 (1968); see also Terry v. Ohio,
392 U.S. 1, 9 (1968).
130
Smith, 442 U.S. at 741.
131
Id. at 742.
132
Id.
133
Id. (citing The Legal Constraints upon the Use of the Pen Register as a Law
Enforcement Tool, 60 C
ORNELL L. REV. 1028, 1029 (1975)).
134
Id.
135
Id. at 742–43.
136
Id. at 741.
137
Id.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 321
investigation involving information that was voluntarily rendered to a
third-party service provider.
However, Justice Stewart wrote a dissenting opinion finding that
recorded dialed phone numbers is no different than an electronically
transmitted conversation; thus, the information gathered in Smith should
fall within the purview of the Fourth Amendment.
138
Notably, Justice
Stewart illustrated that the Katz Court recognized the “[t]he role played by
a private telephone is even more vital, and since Katz it has been
abundantly clear that telephone conversations carried on by people in their
homes or offices are fully protected by the Fourth and Fourteenth
Amendments.”
139
Moreover, it is evident through subsequent case law
precedent that telephone conversations between a caller and recipient are
provided Fourth Amendment protections.
140
The dissent recognized that
the majority opinion rested its argument on the theory that the caller is
aware the telephone number dialed is recorded by the telephone company,
but the telephone conversation is also electronically transmitted by the
telephone company and on its property.
141
This information should also be
afforded protection by the Fourth Amendment because it is derived from
the private conduct within the home or office.
142
Additionally, it is
undisputed that an individual would not remain content if a list of their
phone calls were publicly broadcasted to the world.
143
Not because this
information is incriminating, but rather because it “could reveal the
identities of the persons and the places called, and thus reveal the most
intimate details of a person’s life.”
144
Since Smith v. Maryland in 1979, the third-party doctrine has
remained relatively untouched. Courts have applied the doctrine with
relative uniformity, applying it to information disclosed to internet service
providers,
145
cell site data,
146
bank records,
147
employment records,
148
and
cell phone records.
149
However, this lodestar decision was issued over
138
Id. at 746.
139
Id. (quoting Katz v. United States, 389 U.S. 347, 352 (1967) (emphasis added)).
140
Id. (first citing United States v. United States District Court, 407 U.S. 297, 313 (1972);
then citing Katz, 398 U.S. at 352).
141
Id.
142
Id. at 747. Although this case was decided before the boom of mobile phones, the
application of Katz is possibly still applicable even to mobile phones if a person
demonstrates conduct that shows they had an actual subjective expectation of privacy.
143
Id. at 748.
144
Id.
145
Guest v. Leis, 255 F.3d 325, 335–36 (6th Cir. 2001).
146
United States v. Guerrero, 786 F.3d 351, 359–61 (5th Cir. 2014).
147
United States v. Suarez-Blanca, No. 1:07-CR-0023, 2008 WL 4200156, at *8 (N.D.
Ga. Apr. 21, 2008).
148
Id.
149
Id.
322 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
thirty years before the use of mobile phones, laptops, and most
importantly, digital personal assistants. This doctrine is outdated.
IV. REASONABLE EXPECTATION OF PRIVACY IN AN INTERNET
INFUSED WORLD
In a foregoing time, a person had control over their own information—
personal documents of banking or business transactions existed on a sheet
of paper that the person possessed in their file cabinets.
150
The scribbles
and intimate handwritten notations in one’s diary would be safely tucked
away under their pillow or buried in their nightstand.
151
Letters from one’s
dearly loved ones written on parchment paper would be housed in their
slant front desk.
152
All of one’s papers and personal information were
privately stored within the home. Importantly, if the government wanted
to inquire about one’s personal information, it was required under the
Fourth Amendment for the government to obtain a warrant to search one’s
home.
153
Now, in a world with ever-changing technology, the government can
track a person through the use of data that is broadcasted on a massive
scale without ever obtaining a warrant.
154
Under the third-party doctrine,
if one’s personal information is in the hands of a third-party service, even
if unknowingly, there is no reasonable expectation of privacy.
155
Yes, there
is absolutely no Fourth Amendment protection. But, how can that be?
Does that mean the government can view my recent purchases made with
my credit card? Yes, because that information is also in the hands of your
bank. What about my text messages between my husband? Yes, because
those text messages are shared with both your telephone provider and
potentially the manufacturer of your phone. Could the government even
see what I am movie I am streaming on my laptop? Yes, because Netflix
or whichever service provider you are using has a record of it.
What information was once safely kept private and sound in the
intimacy of our homes is now essentially public information that is easily
accessible by the government. Moreover, this is no minimal amount of
information that is easily accessible. It is infinite. “Consumer reporting
agencies have data about where you live, your financial accounts, and your
history of paying your debts. Hospitals and insurance companies have your
150
DANIEL J. SOLOVE, NOTHING TO HIDE 102 (Yale Univ. Print, 2011).
151
Id.
152
Id.
153
Olmstead v. United States, 277 U.S. 438 (1928).
154
Solove, supra note 150.
155
Smith v. Maryland, 442 U.S. 735, 744 (1979).
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 323
health data.”
156
But wait, there is more. The information on your
Instagram, the people you search on Facebook, the stories you send to your
friends on Snapchat are available to the government. Currently, legal
scholars have denounced the law of search and seizure as
“embarrassing”
157
and “archaic.”
158
The Fourth Amendment is struggling
from both modern development in technology and the constitutional
tension between formalists and realists.
159
A. Does the Fourth Amendment still carry the same spirit after the
inception of the third-party doctrine and invention of Alexa?
This Note began its Fourth Amendment analysis by delving into the
origin of the Fourth Amendment search; specifically, how the Court
defined a search and what dispositive factors queue to an unreasonable
search. Importantly, Olmstead demonstrated that the Court, at that time,
viewed an unreasonable search to transpire when there was a physical
intrusion into one’s home—ultimately protecting one’s property, not the
person. What is interesting about this test, in relation to Amazon’s Alexa,
is that Alexa is property belonging to the owner, which would require a
physical trespass in order to obtain its data. Also, Alexa is commonly kept
inside the owner’s home, therefore, allowing law enforcement to enter into
the home. The physical intrusion into the home could also stem from
finding out whether the homeowner uses an Alexa through billing records,
which would require law enforcement to obtain this data from other types
of technology that are not used by the general public.
This is explicitly what Justice Taft’s analysis hinged on—physical
intrusion inside the home. Accordingly, under this test, the government’s
search of obtaining Alexa without a warrant, which is the current standing
case law, would not pass muster under Olmstead. It was not until the
revelation of the third-party doctrine that retrieving this information
without a warrant was considered reasonable. But was that the traditional
intentions of the framers when enacting the Fourth Amendment? Indeed,
Olmstead was decided more than a century after the Fourth Amendment
was enacted. Nonetheless, other Fourth Amendment precedent decided
closer to the enactment also supports and urges that the third-party
156
Solove, supra note 150 at 102–03.
157
Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 757–
59 (1994).
158
Norman M. Robertson, Reason and the Fourth Amendment—the Burger Court and
the Exclusionary Rule, 46 F
ORDHAM L. REV. 139, 175 (1977).
159
TIMOTHY O. LEARY, PRIVACY IN THE DIGITAL AGE (Nancy S. Lind & Erik Rankin eds.,
2015).
324 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
doctrine, as it pertains to Alexa, would not suffice under the original
notions and purposes of the Fourth Amendment as evidenced in Boyd.
The principle of Boyd v. United States was for a person to be secure
in their home without government intrusion into a person’s private matters
and personal papers. This holding was ultimately enforced to uphold the
Fourth Amendment, which was enacted to prevent the common practice
of writs of assistance. The framers were wary of these general warrants, as
they granted revenue officers with arbitrary and sole discretion to search
whomever without a warrant. Additionally, this included the right for an
officer to even enter one’s home and inspect it. Interestingly, the third-
party doctrine grants the government with a very similar flavor of arbitrary
and excessive discretion of the general warrants. The purpose of the Fourth
Amendment was not to solely ban the use of general warrants in the
customs context specifically, but it was to prohibit the idea and the
exercise of such broad discretion, particularly when it had to deal with
one’s private papers or the home. Today, under the third-party doctrine,
the government can engage in a similar practice that the Fourth
Amendment and cases, such as Boyd, attempted to prevent from occurring.
Thus, the hard question posed is what should members of American
society expect in regard to their third-party information, information they
never knowingly consented to sharing? Have we as a society knowingly
given up our reasonable expectation of privacy in information about us? If
we did not, what can we do other than acquiesce after the fact? Although
the government will argue that, under one’s user agreement the company,
can collect and use the data, but this is the equivalent of an adhesion
contract.
160
Moreover, the data collected by Amazon’s Alexa could be
viewed as the modern-day private papers of an individual. It records our
trail of thoughts and questions, which has similar characteristics to our
mental notes that one would leave in their diary. Moreover, under the
third-party doctrine, the government is legally allowed to obtain other
personal information merely because the individual used a third-party
service.
Notably, in today’s world, an individual does not have much choice of
using or not using these third-party services. For instance, one arguably
needs to have an e-mail in today’s world in order to obtain a job at any
entry level. Or one needs to have a cellular phone in order to keep in
contact with other members of society given today’s mobile society where
friends and family could live all over the world. Thus, given society’s
current accessibility to travel and ease of communication, it is almost
expected of an individual to swiftly respond to an e-mail within minutes
160
JOHN WESLEY HALL, SEARCH AND SEIZURE n.2 (5th ed. 2013). An adhesion contract
is a non-negotiable contract that no person has to the time to read due to its length.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 325
or the hour. Moreover, most of one’s daily tasks involves using a third-
party service provider. For instance, most people today make their daily
purchases through a card, not cash.
161
Also, getting the daily news is now
commonly accessed online or through an app rather than receiving a
newspaper. However, even if one still receives a particular newspaper, the
purchase of that subscription requires a credit card. Therefore, in order to
live in today’s world, an individual’s livelihood is at the mercy of third-
party services.
B. We still have a reasonable expectation of privacy, but
something needs to change
Nonetheless, there are two notable arguments to be made under the
reasonable expectation of privacy. One argument relates to the liberty
notion and personal autonym that was set forth in Katz. The second
argument hinges on the property notion that Justice Scalia advocated for
in Jones. Both are currently standing law and arguably equally applicable
to determine whether a search is determined unreasonable. Moreover,
Justice Sotomayor, in her concurrence in Jones, opined that determining
whether a search is unreasonable is not only founded based on the property
notion that the majority in Jones stated, but also determined on whether
the government violates a subjective expectation of privacy.
The Liberty Notion
Under the liberty notion, Katz set forth that determining whether a
search is reasonable requires the person: (1) to have manifested an actual
subjective expectation of privacy; and (2) this expectation is one that
society is prepared to recognize as reasonable.
162
In relation to using
Amazon’s Alexa, it is possible that the individual is unknowingly being
recorded by the device. Thus, if a husband and a wife get into an argument
in the privacy of their bedroom, and Alexa unknowingly turns on and
begins to record, the couple arguably had a reasonable expectation of
privacy with the unknown communication conveyed to Alexa. Factors
involving this reasonable expectation of privacy would include that the
couple decided to speak to one another within their home, within in their
bedroom, and without their knowledge that Alexa recorded the
conversation. Additionally, the couple could arguably make the point that
that intimate conversation was never intended for the government to easily
obtain.
161
Ellen Sirull, Cash v. Credit Cards: Which Do Americans Use Most? EXPERIAN (June
18, 2018), https://www.experian.com/blogs/ask-experian/cash-vs-credit-cards-which-do-
american-use-most/.
162
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring).
326 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW [Vol. 27:301
Additionally, when considering the existence of a reasonable societal
expectation of privacy, does the reasonable person know that all of this
massive information is easily accessed information by the government? I
would argue that most people are unaware that their bank accounts and
text message conversations can be viewed without any compelling
interest. As Justice Sotomayor eloquently queried, “I would ask whether
people reasonably expect that their movements will be recorded and
aggregated in a manner that enables the Government to ascertain, more or
less at will, their political and religious beliefs, sexual habits, and so on.”
163
Moreover, granting the government with so much power allows for
arbitrary discretion and potential abuse. As it stands right now, the third-
party doctrine enables the police to easily engage in police surveillance
and monitoring of one’s daily life.
164
The Property Notion
A stronger argument can be made by virtue of the property notion set
forth in Jones, which held that a physical trespass by the government
constituted an unreasonable search and seizure. Similar to the car in Jones,
a person’s Alexa or Echo Dot is also their personal property that they
possess. Moreover, similar to how the car in Jones was driven on public
roads, the information shared to third parties is also public information.
The Jones Court specifically rejected the government’s contention that
there is no reasonable expectation on public roads; similarly, Alexa is
shared information with Amazon. A search by the government without a
warrant, however, is a physical trespass on the owner’s property, Alexa.
Additionally, now with the ease of the digital world, law enforcement
would not have to go through the extensive measures of even placing the
tracking GPS on an automobile because, under the third-party doctrine,
they can access our digital trail even without a warrant.
However, in regard to the third-party doctrine, it is time to reconsider
one’s reasonable expectation of privacy in this digital world. In Jones,
Justice Sotomayor noted that the current third-party doctrine is ill suited
to the digital age, where mass amounts of information are revealed by
individuals to third parties.
165
Moreover, it needs to be reconsidered as it
becomes harder to function in the political, economic and social world
without sharing electronical data, which leaves the public with a
dissatisfaction in the law. Arguably, information disclosed to third parties
can be determined as protected for purposes of a search under either the
physical trespass test in Jones or the liberty interest test in Katz.
163
United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J. concurring).
164
Id. at 417.
165
Id.
2019] UNIVERSITY OF MIAMI BUSINESS LAW REVIEW 327
As Justice Stewart indicated in Smith in 1979, the majority of people
would not remain content with having their personal information being
publicly broadcasted.
166
Not because this information is incriminating, but
rather because this information reveals one’s personal and intimate life to
all. This information reflects a wealth of detail concerning an individual’s
familial, professional, political, religious, and sexual associations.
Through this information obtained by third-party service providers, it
would not be difficult to discover whether a person visited a therapist, has
gone to an abortion clinic, had an intimate relationship with a person of
the same sex, had an affair, or recently visited a strip club. The government
can search one’s personal records that have been stored throughout one’s
lifetime. Thus, a doctrine that grants such unfettered discretion to law
enforcement and the government has the ability to chill one’s associational
and expressive freedoms. Therefore, it is imperative for the Court to
reconsider the third-party doctrine and use a narrower construction that
would greatly limit the government’s ability to obtain an individual’s
personal and private information.
V.
CONCLUSION
The Framers of the Constitution strongly advocated for the Fourth
Amendment to protect the privacy of their documents and papers with their
mental impressions and beliefs, particularly after their discontent with the
British invading individuals’ privacy on the basis of using general
warrants. Due to the broad use of the third-party doctrine, the government
is granted similar general warrant power that the Fourth Amendment
ultimately intended to prevent. Given that advancing technologies have
created devices, such as Amazon’s Alexa, that can record our mental
impressions, queries, commands, and conversations, either knowingly or
unbeknownst, it is necessary for the government to place a narrower
construction on the third-party doctrine.
166
442 U.S. at 744.
