1984 in 2015?

February 18, 2015

“Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment.” This is a passage, referring to the television view screens mandated to be in every person’s home, from George Orwell’s famous dystopian novel, 1984, and it probably resonates with readers of a privacy disclaimer that was included with “smart TVs” made by Samsung. The disclaimer read: “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data transmitted to a third party through your use of Voice Recognition.” Samsung plans to change this sentence probably so that it will sound a bit less creepy, but the fact remains that the televisions of the future are being equipped to capture your most private conversations.
The focus of much of the concern regarding this story has been on the possibility that hackers might acquire the information stored by your television or hijack the device, surreptitiously activate the camera, and broadcast the happenings of your living room to the world. However, there is a significant concern more related to Orwell’s fears expressed in 1984 that cannot be remedied by placing a Post-It note over the television’s camera when it is not in use.
The Fourth Amendment of the United States Constitution prevents the government from engaging in unreasonable searches and seizures. However, according to the Court, citizens do not have a reasonable expectation of privacy in information knowingly divulged to third parties. Therefore, if you know that the television in your living room captures conversations and sends that data to a third party, that data can be demanded by the government without implicating the Fourth Amendment because according to the Supreme Court, no search would have occurred. After all, Samsung told you in the literature that came with your TV that your conversations would be sent to someone else. Of course you read that.
Imagine that you are relaxing in your living room where your Smart TV is located. You and your partner are reminiscing about the great time you had last year at your co-worker’s beachfront property in Belize that he let you use for two weeks in exchange for providing him with a free root canal (you are a dentist hopefully). This seems like a harmless enough conversation. It’s not like you were discussing your respective roles in the Kennedy assassination, right? Hold that thought.
As a result of the third-party doctrine, the Fourth Amendment will provide no protection to your conversation because Nuance, or whichever other company is storing the data collected by your television, is a third party. However, there are still laws that protect information in cyberspace like the captured conversation described above. Under the Stored Communications Act, the government must be able to articulate specific facts that provide reasonable grounds to believe that information held in cyberspace by a third party contains evidence relevant to an ongoing criminal investigation. That sounds okay, right?
That would depend on how honestly you filed your last tax return. If you did not report on your income taxes the fair market value of a two week stay at the property in Belize, your television probably just captured your confession to underreporting your income for last year. If you were really bold and admitted, close to your TV, that you knew you should have reported your stay in Belize as income, then you’ve also been recorded confessing to criminal tax evasion. Now if the IRS can convince a judge that it has a reasonable suspicion that you might discuss evidence of tax indiscretions in your own home, it can probably get a warrant to compel the third-party company storing your conversations to hand over that data to the police. If Congress ever decides to repeal the Stored Communications Act, maybe because it’s getting in the way of too many important counter-terrorism investigations, then you would not even have that meager protection.

An in-home government spy is probably not what you thought you were getting when you bought your smart TV.

2015 is beginning to look a little too much like 1984.