Volume 56

Alexa: Can You Keep a Secret? The Third-Party Doctrine in the Age of the Smart Home

by Grace Manning

Under the Fourth Amendment, the home is a castle. It is the place where one may retreat and “be free from unreasonable governmental intrusion.” It is afforded the highest level of protection. Not so with the smart home. In the home enhanced by artificial intelligence, there is no reasonable expectation of privacy in data shared with third parties like Amazon. The third-party doctrine says there is no expectation of privacy in information voluntarily provided to others. The Fourth Amendment protects the right to be secure in one’s person, house, papers, and effects, against unreasonable searches and seizures. In recent years, the Amendment has taken on new meaning. Today, we mail our DNA – the very essence of our persons – to 23andMe. We rely on Alexa in our houses, and her always-on microphone to make life easier. We store our papers and effects on the Cloud, in Gmail, and on Dropbox. Focusing on Alexa, this article will contend that the third-party doctrine no longer comports with the Fourth Amendment. Nixing the doctrine – and replacing it with robust privacy protections – is the only way forward.

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