Already, the blawgosphere is atwitter over the class action filed in Robbins v. Lower Merion School District, where an assistant principal at Harriton High School is alleged to have remotely activated the webcam on a student’s laptop and observed what is diplomatically called inappropriate behavior. Above the Law has it covered from the salacious angle (calling “creeptastic”). Volokh Conspiracy takes a quick look at its legality, where Orin Kerr sees it as a clear 4th Amendment violation, though not unlawful under any statute.
Aside from the nasty implications of school administrators peeping into the bedrooms of coeds late at night, it dawned on me that we’ve barely scratched the surface of how computers, whether via webcam as here or other functions like voice recorder, can turn into a two-way mirror into aspects of our lives that were never meant to be seen by others.
That this case arises in the context of a school administrator smacks of sloppiness. Had the assistant principal used the improperly obtained information with a bit more guile, perhaps the student would never have known where she got it. The remote activation feature could have provided hours of information and amusement for years to come.
Lacking the depth of understanding of the capabilities of technology of others, I’m left to speculate. But it seems fairly clear to me that webcams on laptop computers, already a fairly ubiquitous feature, has huge potential for a Brave New World that hasn’t received much thought as yet. There doesn’t appear to be much question but that the technology exists to activate webcams from far away, and that anyone who has the key to the door will be able to do so. Might that anybody be law enforcement? Might that anybody already have the key, and already be watching?
The Lower Merion School District has responded to the allegations of the suit, stating that the remote activation feature is there as a security measure if laptops are stolen. It would certainly be useful in that regard. They further state that they won’t activate the feature again without the written permission of students and parents. No reason to doubt them, now that they’ve had their hand smacked. But even assuming they are as sincere as can be, and I’ve no reason to believe otherwise, does this mean that others won’t employ the feature to do a little extracurricular studying?
For techno-dinosaurs like me, the capabilities of electronic devices never cease to amaze. Like everyone else, I enjoy the benefits of the latest, greatest advances, and marvel at the near daily miracles that technology brings into my home. I do not, however, consider the implications of the untold uses and capabilities of each new device, each new application. I suspect few others do either, limiting their attention to the shiny purpose of new toys rather than the nefarious uses to which it could be put.
I suspect we are surrounded by devices that can provide the government with an incredible amount of information about us, ranging from our whereabouts to what we wear to sleep at night. And if we whisper to our spouse in bed with the computer nearby, they may well hear our words as well. Even if this isn’t true today, how long before it will be true?
As with the Lower Merion School District, reliance on the government, whether local, federal or somewhere in between, to honor our privacy and never, but never, peak into our homes despite having the capability to do so, is not sufficiently heart-warming for my purposes. Anybody out there trust the government that much? Anybody out there trust each and every individual law enforcement officer to honor your privacy? Come on.
While I’ve advocated for a new approach to 4th Amendment protections, one that will avoid trying to shove new technology (round peg) into old law (square peg), this isn’t a legal problem as much as an unintended consequence of all the great benefits tech brings us. We love our tech, but it’s an open window on our lives that allows any peeping LEO to look in at will. Even if they sincerely promise that they would never do such a thing.
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The school says they’ll never use the remote monitoring capability without permission, but I wonder… Could a police department investigating a current or former Lower Merion School District student get a judge to sign a warrant (or whatever) to spy on someone with one of these computers?
And then I remember there are laws requiring phone companies to install equipment (unneeded for normal phone service) to make it possible for law enforcement to tap our phones. I hope they don’t get any ideas about special law enforcement requirements for computers…
And what makes you think that ship hasn’t already sailed? Not that I have any evidence to prove that it has, but just saying…
I just didn’t want to sound like a typical paranoid libertarian whackjob.
It’s just too easy to say that that ship has sailed too, so I won’t.
Don’t log on at the public library if you have an open warrant and your mug shot is online. It isn’t wise to log on at Starbucks or in any other public place, either. The expectation of privacy, if it exists at all, does not extend past your front door, which should be kept closed and locked. Just saying.
There’s cameras on computers, as well as internal sound cards… And we’ve already heard about cell phones turning on without people realizing and becoming voluntarily-carried bugs…
But technology isn’t the only issue in this case. There’s also the increasing sense of entitlement school administrations are demonstrating. “Bong Hits For Jesus” was a non-technological example of school control extending beyond the reach of school doors. That administrators might also seek to leverage technology to extend their reach is hardly surprising.
I like public schools. Mine were excellent, and I always tend to scoff at homeschoolers who don’t believe in public education at all. But if putting my kids in public school means that I would be submitting them to this increasingly extensive school jurisdiction over their lives, I’d think twice about doing so. I’d have to.
You raise an interesting question. Is Katz what we, as citizens, would reasonably expect to be private, or what is reasonably expected to be private given the nature and growth of technology. If the former, than we won’t let tech control our expectations and lives. If the latter, then all is lost.
So when are you due?
Sometime this century.
I’ve found an index card over the camera lens is an easy and useful addition. It doesn’t help with the audio, of course.
You are absolutely correct in suggesting that currently available high technology may already be being used in an unlawful manner to watch and listen to people in their homes. It is true today. I have had first-hand experience with the use of some sort of warrantless through-the-wall imaging via an unmanned aerial vehicle (UAV). That these technologies are well developed is easily verified by a cursory web search, and though invariably touted as being developed for use in disaster scenarios to locate victims, etc, they can clearly be used for all manner of other ends.
That these technologies are being solicited for development by the Department of Justice was noticed by the Supreme Court itself in Kyllo vs. US in 2001. But there are no mechanisms for oversight of their use by law enforcement, and reading of Fourth Amendment case law demonstrates that law enforcement is consistently and persistently trying to evade Fourth Amendment protections. It’s pretty clear that all manner of surveillance technologies are being developed and used by law enforcement, and while any information gleaned by their use may not be directly admissible in court, they allow law enforcement to find out, for example, when and who to pretextually stop and then (serendipitously) discover something above and beyond a broken turn signal.
You have written before about how a right without a remedy when breached is no right at all; the use of these technologies is essentially nullifying the Fourth Amendment.
To late. Volokh just posted about United States v. Lemus which held the police may do a “officer protection” search of a home when the arrest occurs outside the home. As the dissent points out, the logic would permit searches of nearby homes as well.
So your home is only safe is it is locked so as to be unopenable from the interior and has no windows.
I saw that too. Maybe the subject of another “remember the rubric, forget the rationale” post for tomorrow. But it just seems like it never ends, coming up with the ever expanding universe of excuses/exceptions.
This calls to mind the hoary legal maxim, “A man’s prison cell is his castle.”
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