Privacy in the Age of Active Sensors

Abstract

With Apple adding a LiDAR scanner to the iPhone 13 and the growing number of automated vehicles using numerous sensor systems, active sensors have begun the march from the shadows of niche applications into the light of general public use. This article seeks to be first to offer a privacy analysis of the general use of active sensors. Passive sensors, like eyes, ears, and most cameras and microphones, collect ambient energy. Active sensors, like radar, LiDAR, and sonar, introduce their own energy into an environment and measure the return of that energy, thereby revealing the surrounding world. Because of their increased privacy impact, active sensors should be treated differently than passive sensors under U.S. privacy law. The path to such laws, though, is not clear.

Tene & Polonetsky’s (2013) Theory of Creepy technologies offers an analytical roadmap. They present a three-part definition of a “creepy” technology. The article proceeds by examining two of the three elements of the definition as applied to active sensors. Active sensors meet this definition because of their combination of technical capabilities, novel challenges to social norms, and lack of legal limitations. The technical capabilities of active sensors make them distinct from passive sensors under privacy law. The norms and policies supporting legal limitations on passive sensor data fail to apply fully to active sensor data.

By identifying the law’s current shortcomings highlighted by active sensors, the article hopes to identify the privacy issues that need to be addressed as active sensors come into general public use. A companion piece to this article will examine the third element of this “creepy” technology by exploring the current regulatory framework around active sensors and highlighting some challenges to improving it from a privacy perspective.
[Forthcoming, UMKC Law Review, 2023]

Keywords: privacy, technology, active sensors, lidar, radar, sonar, state privacy laws, Fourth Amendment, drones, automated vehicles, cell phones, iPhones, information privacy, data privacy, personal information, private information