The Wiretapping of Things
62 Pages Posted: 10 Jan 2020
Date Written: December 20, 2019
Law enforcement necessitates some form of control and access to what individuals in society are doing. Enforcement agencies might require real-time access to various types of data to detect and prevent crimes, arrest suspects, and eventually use the acquired data as evidence. Throughout history, the state has sought to gain access to new technologies that would advance their investigation or even suspicion of criminal activities — whether by telegraph, by mail, or by telephone. Such potential access greatly increased with the invention of the public internet and recently expanded through what is termed as the Internet of Things (IoT), whereby almost any regular object — or more simply stated, “things” — could be constantly connected to the internet while collecting various types of data from its sensors. Real-time access to IoT devices and to their stored communications could reveal individuals’ locations, any information they conveyed in the vicinity of the device, their images and videos, their vital signs, and much more about people’s lives. While this data could be vital for enforcement in the digital age, the Wiretapping of Things is also highly intrusive and could greatly jeopardize civil rights and liberties, like that of the right to privacy.
This Article examines the normative and pragmatic implications of law enforcement in light of new communication technologies and, mainly, that of IoT. The Article questions, inter alia, whether the current legal framework that governs stored communication and wiretapping, originally designed for computers and telephones, is still relevant for these new technological developments. Could the state pragmatically gain access to IoT devices in real-time — and “wiretap” them? Do the current regulatory requirements change in light of IoT capabilities? And how should policymakers balance enforcement needs against safeguarding human rights and liberties, such as the right to privacy? This Article approaches these and related timely questions by analyzing the current legal framework that governs lawful access to stored communications and wiretapping while evaluating whether it fits a world awash with sensors. Upon discussing and evaluating whether access to IoT devices is practical and desirable, the Article suggests that policymakers reconsider the current regulatory framework for both stored communications and wiretapping, as they are ill suited to properly protect privacy in the IoT age.
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