Skip to main content
Article

Restoring the Lost Law of Eavesdropping

AEIdeas

January 13, 2025

Under a standard of recency that allowed me to review a 40-year-old book in 2023, I want to celebrate the very recent publication, over a year ago, of two articles on the law of eavesdropping. Historically, there was fairly robust law on listening in. Given new technological forms of secret overhearing, that law may have applications in the present day.

There is a reason we have student-run law reviews and writings. When students dive into a subject, they have to learn the whole thing. As writers, they show their work.

So Julia Keller’s “Eavesdropping: The Forgotten Public Nuisance in the Age of Alexa” is a wonderful exegesis on public nuisance law generally, eavesdropping as its subject, and how new “always-listening” technologies may be amenable to public nuisance causes of action.

Hanging around under others’ eaves listening to conversations and activities inside homes has much historic pedigree as a wrong. Such activity—if habitual—was not just a trespass on one family’s property rights or an invasion of their privacy; it was a public nuisance, actionable by more than just direct victims for a number of reasons.

The repetition of information so learned was liable to injure harmony among families and townsfolk. The practice threatened the privacy, of not just identified victims but anyone who might also be eavesdropped on by a regular snoop.

Keller makes a case that a voice-activated assistant or smart speaker, such as Alexa, Siri, and Google Assistant, could be brought to heel by public nuisance law. In millions of homes, voice-activated assistants might wrongly be listening in on conversations and transmitting them to cloud-based services where who knows what might happen with them.

The argument falls down, I think, on the fact that people bring these devices into their homes for the purpose of listening in and helping out. It’s a fundamental difference from the eavesdropper of yore.

There are certainly many opportunities for things to go wrong. They include miscalibration that causes devices to collect conversations they’re not invited to join and people’s misunderstanding of risks that spring from what the devices do with the content they collect. But many legal and market responses hem in wrongs better than so blunt an instrument as making them a public nuisance akin to eavesdroppers. Keller betrays a certain myopia by saying a few times that these devices are “unregulated,” as if statutes and administrative agencies are the only things that control behavior.

A footnote in the other article I extoll here suggests that smart devices were an afterthought to Keller. A draft version of her paper did not have “Alexa” in the title.

The latter paper is “Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping),” by Professor Donald A. Dripps of the University of San Diego School of Law. Dripps argues more breezily than an earnest student would that the common law of eavesdropping should imbue the modern Fourth Amendment.

With the current Court focused on textualism, I’ve been quite focused on what that mode of interpretation would do with the Fourth Amendment. The “reasonable expectation of privacy” test has nothing to do with the text, and it’s on the way out sooner or later.

Dripps correctly reminds us that the Fourth Amendment protects a “right of the people to be secure” in their persons, houses, papers, and effects. That is not just a protection for persons, houses, papers, and effects as such, which Dripps characterizes as an “atomistic” view of the amendment. The alternative “regulatory” approach gives meaning to the “right to be secure,” which is broader than a right only not to have things taken or examined. One thing that secured houses at the time of the founding was eavesdropping law: “The prohibition of eavesdropping was part and parcel of the common law’s protection for the security of the home.”

It is a simple extension from auditory eavesdropping to digital eavesdropping, and I think Dripps’s point would be well-taken in some contexts. Governmental listening in to communications is the technological scion of ancient eavesdropping, to paraphrase a case about email as modern mail.

I differ from Dripps’s characterization of certain cases and historical strands of Fourth Amendment law and doctrine. But the attention he gives to eavesdropping law in the Fourth Amendment context is a wonderful contribution.

With these two articles lodged in the pantheon of legal scholarship, we are improved! Kudos and thanks to the authors for their part in restoring the lost law of eavesdropping.