Allegra Bianchini · March 2018
86 Geo. Wash. L. Rev. Arguendo 1
What do you say in your home when you think no one is listening? Have you ever contemplated that someone might be listening? What would you do if a recorded log of what you say and do behind closed doors could be used against you? With the recent rise of digital assistant devices, often referred to as “always on, always listening” devices, this circumstance is a tangible reality. Given the state of digital data protection, the information collected by these devices and stored on service provider “clouds” remains ambiguously protected and in some cases subject to warrantless government searches. This Note proposes that, given the intimate nature of this data and the rationale supporting recent Supreme Court decisions concerning the Fourth Amendment, it should be afforded a higher level of protection than it currently receives under the Electronic Communications Privacy Act of 1986 (“ECPA”). Instead, it should be treated as a physical aspect of a user’s home, consistent with the Supreme Court’s analysis in Kyllo v. United States. Bolstered by the reasoning used by the Supreme Court, this Note proposes that Congress amend the ECPA to provide such protection for digital information beyond just “communications” in order to maintain the high level of privacy in one’s home that has been valued by the United States since the time of its founders.
