Idaho Law Review
Margot E. Kaminski, Robots in the Home: What Will We Have Agreed To?, 51 Idaho L. Rev. 661 (2015), available at https://scholar.law.colorado.edu/articles/971.
A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize they are not legally protected from privacy invasions — household robots may serve as a doctrinal privacy catalyst.
This Essay begins by identifying the legally salient features of home robots: the aspects of home robots that will likely drive the most interesting legal questions. It then explores how current privacy law governing both law enforcement and private parties addresses a number of questions raised by home robots. There are two legal puzzles raised — or revealed — by household robots. First, there is the question of whether a robot’s permission to be in a space also grants permission to record information about that space. Second, there is the broader legal question of whether traditional legal protection of the home as a privileged, private space will withstand invasion by digital technology that has permission to be there. This Essay claims that the legally salient aspects of home robots may drive a collision between the legal understanding of privacy in real physical space, and its understanding of privacy in the digital realm. That conflict in turn reveals inconsistent understandings of permission and consent in context, across privacy law.
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