“You know, half the organic memories you have are junk.”
Black Mirror is a technology-based, sci-fi miniseries produced by digital entertainment giant, Netflix. The show, which has been labeled “TV’s Magic 8-Ball,”[1] is a collection of self-contained episodes that tackle totally plausible technological advances and the effect those advances have on our world. While many episodes ostensibly take place in the United Kingdom, I will assume that similar technology exists contemporaneously in the United States and analyze various episodes with an eye towards U.S. law.
In the show’s third episode, “The Entire History of You,” we are introduced to a young lawyer, Liam Foxwell, who reviews a job interview through real time video footage displayed on a retinal screen and ostensibly stored in an implanted “grain” behind his ear. Later in the episode, Liam consents to have his memories screened by security agents at the airport and at home, he uses his grain during arguments with his wife to settle disputes, scrutinize body language, and uncover an affair.In this alternate universe, people can elect to be implanted with a digital recording device known as a “grain,” which allows them to review video and audio playback of every moment they experience. Using a handheld remote, memories are shuffled through like episodes on Netflix; they can be encrypted, deleted, or displayed on TV screens. Grains can also be stolen (a process known as “gouging”), we find out, with the stored memories then sold to voyeuristic “millionaire Chinese pervs.” And because the memory recordings in the gouged grain would be lost, new buyers are given 30 years’ worth of backup space to store memories (ostensibly in the Cloud).
Given this ability to definitively resolve any dispute as to who said what, what someone knew, or where someone was at any given time, the implications of such technology are manifest. Police, insurance agencies, and aggrieved parties would assuredly seek discovery of pertinent recordings; leading to issues regarding privacy, government searches or seizures of an individual’s grain, self-incrimination, and the production of evidence. Due in part to the similarity between the grain’s functions and current cell phone technology (in terms of capability and prevalence), the law as it stands is likely sufficient to address the attendant constitutional and privacy rights of U.S. citizens with grains.
I. An Invasion of Privacy
In a world where almost everyone is automatically recording everything they do and see, anyone a person interacts with (or views) is being recorded by default and the concept of “privacy” is limited. Unlike in the European Union, the “‘right to be forgotten,’ . . . is not recognized in the United States.” Garcia v. Google, Inc., 786 F.3d 733, 745–46 (9th Cir. 2015) (citing Case C–131/12, Google Spain SL v. Agencia Española de Protección de Datos (AEPD), ECLI:EU:C:2014:616 (May 13, 2014)). Under federal law, “[a]bsent some special circumstance (such as an attorney-client privilege), no right of privacy or other protection attaches to words spoken by one individual to another individual; the speaker assumes the risk that his auditor may repeat the conversation to others.” United States v. Cox, 836 F. Supp. 1189, 1197 (D. Md. 1993). Nor is the government likely to create any. The right to record video or audio, at least “in traditional public fora” is protected under the First Amendment, United States v. Cox, 836 F. Supp. 1189, 1197 (D. Md. 1993), and any attempt by the government to establish content or non-content related restrictions on recording, would be subject to either strict scrutiny or intermediate scrutiny, respectively. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010); United States v. O’Brien, 391 U.S. 367, 377 (1968).
State law, however, often does provide a right to privacy. Several state constitutions explicitly include such a right. See Alaska Const. art. I, § 22; Cal. Const. art. I, § 1; Wash. Const. art. I, § 7. The Restatement (Second) of Torts § 652A(1), which is a relatively authoritative statement of the common law privacy torts having been adopted by most states, also concludes that “[o]ne who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.” Subject to the vagaries of state law, grain recordings of a person’s private life would likely fall under “intrusion upon seclusion” and any post-recording publication of personal, offensive, or misleading recordings could subject the recorder to state law liability.
II. Searches, Seizures, and Arrests
Next, given the vast amount of illuminating information potentially captured by a grain, the government would surely seek control over grain recordings in criminal prosecutions. For if guilt or innocence could be easily determined by viewing the alleged event unfold in real-time, other evidence would be wholly unnecessary to prosecuting criminals. The Fourth Amendment, however, would still likely provide adequate protections for a person’s grain rights.
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court in Katz v. United States, 389 U.S. 347 (1967), created a two-part inquiry to examine if the government must obtain a search warrant before searching or seizing a citizen’s a grain. The individual must manifest “a subjective expectation of privacy in the object of the challenged search,” and society must “willing to recognize that expectation as reasonable.” California v. Ciraolo, 476 U.S. 207, 211 (1986). While the first, subjective inquiry would be case specific, it is easy to deduce that a person with a grain stored in their body, which contains every conceivable piece of private data, would subjectively expect their grain’s contents to be private. Under the second, objective inquiry, we can assume that by virtue of an individual’s private control over their own grain and historical privacy of thought, society has recognized that person’s privacy expectation as reasonable. See Wooley v. Maynard, 430 U.S. 705, 714 (1977); Stanley v. Georgia, 394 U.S. 557, 565 (1969); Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 342 (1990). In short, because of the internal placement of the grain and the collective magnitude of the information stored on that grain, the Fourth Amendment would require a search warrant for the search or seizure of a grain absent exceptional circumstances.
While many exceptions, such as “exigent circumstances,” are highly fact intensive and cannot be addressed in the abstract, the Search Incident to Arrest (“SITA”) exception can be decided as a matter of law. The Court in Riley v. California134 S. Ct. 2473, 2490 (2014), analyzed the SITA exception to the Fourth Amendment’s warrant requirement in the context of cellular phones. Holding that the exception did not apply, the Court found that cell phones “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” in that they contain “a digital record of nearly every aspect of [people’s] lives—from the mundane to the intimate.” Id. Looking at grain technology here, the Court would likely find Riley instructive. Like cell phones, grains store an immense treasure trove of personal, intimate information and also, information on grains cannot be used as a weapon that would threaten an arresting officer’s life. Id. at 2485. And while the possibility of remote wiping was not addressed in the episode, I assume that other technological advances will allow police to take control of a person’s remote, block incoming signals, or make a copy of the data to preserve evidence. Simply put, grains, “[w]ith all they contain and all they may reveal, [would] hold for many Americans ‘the privacies of life.’” Id. at 2494–95 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). An important caveat to note, however, is that like Liam’s interaction with the airport security agent, an individual could consent to have their grain recordings reviewed. Pennsylvania v. Muniz, 496 U.S. 582, 594 (1990).
III. Compelling Production by Defendant
Once a person is arrested and a search warrant is obtained, the next question is whether the police could be forced them to turn over their grain’s recordings. The Self-Incrimination Clause of the Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” This privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966).
Relevant here, the status of the law with regards to production of physical items that tend to incriminate a person is unclear. Although the Supreme Court has held that forced production of physical evidence does not implicate the Fifth Amendment, see Boyd v. United States, 116 U.S. 616, 634–35 (1886), the Court has also recognized that the act of producing the documents may be testimonial to the extent that the act of production concedes “the existence of the papers demanded and their possession or control by the taxpayer,” or because the production serves to authenticate the materials, Fisher v. United States, 425 U.S. 391, 409–10 (1976).
A grain is definitely in possession of the defendant, located within their body, and contains recordings of what the defendant said and observed. Although the recording and any statements made in the recordings would be considered voluntary (at the time of their creation), the production of those recordings would not be voluntary. In the most literal sense, a defendant compelled to produce the grain recordings of what they said would be forced “to disclose the contents of his own mind,” Curcio v. United States, 354 U.S. 118, 128 (1957), which implicates the Self–Incrimination Clause.
A much closer call occurs in the context of arguably non-testimonial grain recordings, such as video of a crime scene or the dimensions of an instrument. Like producing a shirt for the jury’s consideration, see Holt v. United States, 218 U.S. 245, 252–53 (1910) the “evidence” contained in the grain’s videos could be viewed as real or physical evidence. In those cases, I believe the Court would still find that the defendant is not required to produce his grain recordings because it would constitute compelling of personal testimony (in the form of what was seen), does not fall neatly into the categorical exception for real or physical evidence because it directly implicates the defendant’s control or knowledge of evidence, and is so connected with the defendant’s personal thoughts and actions as to implicate the self-incrimination concerns inherent in the Fifth Amendment’s protection.
IV. Compelling Production By A Third Party
But what about compelling the production of third party’s grain recordings? Could the police force a witness to a crime to turn over their internal video feed? The answer is very likely, yes. Couch v. United States, 409 U.S. 322, 328 (1973). The Supreme Court has made clear “that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” United States v. Nobles, 422 U.S. 225, 234 (1975). Police informants or undercover agents may also produce their grain recordings, even those containing the surreptitiously-recorded admissions of a defendant, without violating the Fourth or Fifth Amendment. United States v. White, 401 U.S. 745, 751 (1971).
Under Federal Rule of Criminal Procedure 17(c)(1), the state may use a subpoena to “order the witness to produce” their grain, except under certain circumstances. See United States v. Nixon, 418 U.S. 683, 699–700 (1974). Although not specifically addressed in the episode, it is also reasonable to assume that a grain stores recordings locally and backs up those recordings online in the Cloud. If the recordings are stored on a remote server, the state would likely still be able to gain access to them through the Stored Communications Act. See 18 U.S.C. § 2703(c). And because law enforcement officers may have pertinent grain recordings as well, a defendant may be able to obtain those recordings under state disclosure laws or the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552
V. Conclusion
Grain recordings, which show accurate depictions of an individual’s visual and auditory perceptions, would be invaluable evidence for private litigants, criminal defendants, and the government. Like any technology that makes attaining the actual truth of a matter more easily obtained, however, these recordings would also be protected under the Fourth and Fifth Amendment in criminal proceedings. And while production of grain recordings would likely be routine in civil matters, criminal defendants would still have adequate protections against self-incrimination to limit the government’s ability to obtain those recordings. Good thing you don’t have to worry about this tech, right?
[1] G. Clay Whittaker, ‘Black Mirror’ Is TV’s Magic 8-Ball, The Daily Beast (Feb. 21, 2018 3:07 PM), https://www.thedailybeast.com/black-mirror-is-tvs-magic-8-ball (“It becomes difficult to discuss the impact and predictions of dystopian programs a few years after they’re created. At some point the conversation has to switch from ‘will they be right’ to ‘are they right.’ In many aspects Black Mirror was early in capturing certain aspects of life that have become familiar to us since.”).