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Kalish: Virtual Privacy

My brother and sister-in-law have given the parents and me an Amazon Echo - or, as many know it, an “Alexa.” They love theirs and thought the more technologically “slow” of us should have one too. My nieces helped me set it up. The 13-year old patiently helped me find the right app, follow its instructions, punch in my passwords… And the 8-year-old showed me how to ask Alexa to sound flatulent.

There are many such devices and apparently they were popular gifts this year. And they are pretty cool. On a whim, I can demand that it “play piano jazz,” or the “Wait Wait” episode I missed.

But there’s a reason I find this kind of technology – and the Internet of Things in general – unsettling.

Most technology these days leaves behind a “footprint” – a history of your web searches, internet purchases, smart home information … even your daily physical movements, through your phone. This information gets stored by the companies providing these services. But then what? Who has access to this information? And for what purposes?

There’s a case currently pending before the U.S. Supreme Court, entitled Carpenter v. U.S. that’s about whether the government is allowed to access Cell Site Location Information without a warrant. CSLI data is the information that’s generated whenever your phone “pings” off of a cell tower, which can then be used to determine a person’s physical location.

However, the case is about a lot more than that.

The question turns on what’s called the Third Party Doctrine, a legal rule developed during the 1970’s saying that individuals do not have a reasonable expectation of privacy in information possessed by third parties. These cases ruled, for example, that because the phone numbers you call are the business records of the phone company, the 4th Amendment doesn’t apply to them.

The world, though, has changed since the 70’s. Think about all of your media, communication, and “smart” devices – and how much information could, arguably, be part of the “business records” of a third party. If you store personal computing information not on your hard drive but in the Cloud, who could be described as owning that?

Right now, my Alexa profile isn’t that interesting. I like 80’s music. And apparently I enjoy eight-year-old humor.

But one thing is clear: it's time for all of us to start wondering what our electronic footprints reveal about us.