As society embraces the benefits and growing ubiquity of Internet of Things devices, consumers are increasingly exposed to unanticipated privacy risks. Today’s technology can collect data in unprecedented quantities, enabling capabilities previously unimaginable outside the realm of science fiction. Particularly alarming is that this technology is entering what the Supreme Court has defended as one of the most sacred sites at the core of the Fourth Amendment—the home.
Network-connected home video surveillance devices are now widespread and documenting an increasing amount of residential life, challenging many of our assumptions about private spaces. Amazon, in particular, has made waves in the home video surveillance market with its “Neighbors by Ring” application, which is tied to operations of the Ring Video Doorbell device. Through the Neighbors app, Amazon became the first private company in the home surveillance space to establish a public partnership with law enforcement agencies. Amazon advertises this partnership as a way to promote safer communities. In exchange for access to information from the app, Amazon encourages—and sometimes even contractually requires—law enforcement agencies to promote installation of Ring doorbells and use of the Neighbors app in their community.
This relationship raises many challenging constitutional questions and civil liberty concerns, which I will explore in five parts. In Part I, I provide an overview of the relationship between Amazon Ring and law enforcement. Part II explains the overarching constitutional concerns arising from the relationship in the context of criminal investigations. Given these constitutional concerns, Part III questions whether Amazon should be considered an agent of the government for purposes of the Fourth Amendment. Part IV discusses what are permissible government actions for obtaining video footage under current law. And finally, Part V highlights the vast privacy concerns that seemingly innocuous partnerships may bring.
One of the distinguishing features of the Amazon Ring Doorbell camera is that it is bundled with access to the Neighbors app. This app specifically allows individuals to share crime-related footage from their Ring camera with the local community. Once a user uploads content, those nearby can see a general location of the reports, add comments, and even re-share the video footage on their social media.
Many law enforcement agencies are active users of the Neighbors app. As of January 2020, over 400 law enforcement agencies have partnered with Amazon’s Ring companies. Through these partnerships, law enforcement agencies have access to all publicly available content. Officers can monitor user reports, post alerts, and request video footage from Ring users. Users, of course, must consent to turn over video footage, but the partnership lowers investigative barriers for law enforcement overall. It creates a pathway for law enforcement to circumvent the legal process that would otherwise be required to obtain content from Ring itself. That is precisely where the law enforcement-Amazon Ring relationship becomes problematic.
Law enforcement agencies have in effect become Amazon customers, a relationship Amazon not only welcomes but has worked hard to cultivate. Amazon has given police departments free Ring cameras—presumably hoping that departments will endorse Ring products. This strategy has succeeded, as numerous police departments have promoted Ring cameras through free giveaways. Police departments have even offered free Ring cameras as rewards for information leading to arrests of criminal suspects.
Even more concerning is evidence that Amazon coaches law enforcement agencies on how to persuade Ring customers to share footage and thereby avoid the legal process requirement, including the need for a warrant. Last year, the Topeka Police Department shared a spreadsheet it received from Ring containing 46 message templates officers could post on the Neighbors app to encourage users to share their footage. Indeed, contracts from police departments in three states show that “Ring pre-writes almost all of the messages shared by police across social media, and attempts to legally obligate police to give the company final say on all statements about its products.” Amazon also has been accused of partnering with law enforcement to create sting operations.
II. Why is This Problematic?
With Ring and the Neighbors app, Amazon has given law enforcement unprecedented access to surveil public spaces using citizen-owned recording devices. This jeopardizes privacy in disturbing ways, offering the government a way to see, collect, and possibly store video of situations that would otherwise never have been captured.
There is a significant distinction between collection of data by a private actor who voluntarily turns it over to the police and a scheme where law enforcement partners with private actors to collect that same data. Private actors may collect information about others so long as their activity does not violate state or federal laws, whereas law enforcement investigations face Fourth, Fifth, and Sixth Amendment limitations and must comply with federal statutes that protect individual privacy and dignity interests. By partnering with Amazon, law enforcement agencies circumvent these crucial constitutional and statutory protections.
The Fourth Amendment’s protections are particularly important in the context of warrantless access to home video surveillance footage. At its core, the Fourth Amendment is a repudiation of the English general warrant tradition. Yet the Neighbors app allows for such general warrants in the online space, making it possible for law enforcement to issue broad requests in two ways.
First, law enforcement may request video footage from any users within a radius that Ring has determined to constitute a “neighborhood.” To initiate such requests, Ring requires only that law enforcement provide a valid case number, and it is unclear whether Ring has any mechanism to verify the scope of the search. Regardless, law enforcement may avoid this process entirely through the second method of issuing a request: posting directly to the Neighbors app and soliciting content from users.
Ring even considered going a step further, building a tool that would use 911 calls to automatically activate the video cameras on any smart doorbells near the area where the call was placed, regardless of user notice or consent. Such a feature would present immense potential for abuse, civil liberty violations, and racial targeting.
This behavior pushes the boundaries of privacy and liberty, as so many law enforcement investigative techniques have and do. The difference here is that Amazon, a private company, is complicit. This begs the question: do partnerships with law enforcement agencies qualify Amazon as “acting as an agent of the government” for purposes of the Fourth Amendment?
III. Has Amazon Become an Agent of the Government?
Though the Fourth Amendment “does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative,” it does protect “against such intrusions if the private party acted as an instrument or agent of the [g]overnment.” To determine if a private individual acted as an agent of the government, courts look at the degree of government participation in the private party’s activities. “The fact that the [g]overnment [did] not compel a private party to conduct the search does not make that search a private one.”
If a court determines that a private party acted on behalf of the government for purposes of the Fourth Amendment, its actions will be considered as if the government itself had undertaken them. If the court determines that the search or seizure was unreasonable, the exclusionary rule applies and any evidence obtained is inadmissible as fruit of the poisonous tree.
The danger here is that Amazon allows law enforcement agencies to directly contact users on the Neighbors app without any check on the expansiveness of the search for video footage. Sometimes Amazon serves as the mediator between law enforcement and users, delivering law enforcement requests to users in a particular “neighborhood.” But again, Amazon requires only a case number for police to initiate a broad request for video footage, and officers may circumvent this trivial requirement by posting directly to the Neighbors app.
Unlike a private person who voluntarily turns over evidence to the police, the fact that Amazon enables and coaches law enforcement on how to convince private citizens to turn over content is problematic. Amazon has created an environment that allows citizens to become de facto informants by giving law enforcement language and devices that would entice cooperation. This structure, at the minimum, blurs the line between government and private surveillance.
Law enforcement access to a boundless network of surveillance footage greatly cuts the costs of surveillance. More alarmingly though, lack of transparency around such access may erode core constitutional protections. Justice Sotomayor raised this concern a few years ago in the context of GPS monitoring. She pointed out that new methods of surveillance are “cheap in comparison to conventional surveillance techniques and, by design, proceed surreptitiously [and] evade the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’” More recently, Chief Justice Roberts articulated the Court’s discomfort with the collection and aggregation of personal data, which he labeled “inescapable and automatic [in] nature” in the context of cell site location information. Home surveillance devices and law enforcement’s use of them present similar concerns.
IV. What Is Permissible Under Current Law?
This is not to say that all law enforcement requests through partnerships with companies like Amazon are unlawful. Companies routinely turn over evidence to law enforcement under the third-party doctrine, but this requires compliance with federal statutes that demand law enforcement provides proper legal process—typically warrants or court orders. Recently, though, there has been debate about how far companies should go in providing reasonable technical assistance to the government. In light of the revelations by Edward Snowden and others about the extent of government surveillance, some tech companies have been vocal about their commitment to protecting individual privacy. Apple, for example, refused to create a backdoor to their iPhone encryption, arguing that it would set a dangerous precedent.
Amazon’s relationship with law enforcement agencies, however, does just that. It creates a quasi-backdoor structure that gives law enforcement easier access to private users’ video footage. Amazon inserts itself into criminal investigations even further by assisting and coaching law enforcement on how to circumvent legal requirements—such as the Fourth Amendment’s warrant requirement and federal statutory requirements governing searches.
Still some argue that Ring users’ consent to turn over their information negates Fourth Amendment concerns because, at the end of the day, private individuals—not Amazon—are providing information to authorities. Private individuals certainly are free to give their content to law enforcement. But the mechanics of the Neighbors app call into question whether user consent to turn over video is actually voluntary.
The Supreme Court has said that consent cannot be coerced “by explicit or implicit means, by implied threat or by covert force.” The government has an affirmative burden to prove that consent was voluntary. As there is no bright line rule to define voluntariness, courts look to the totality of the circumstances.
Amazon recently updated its Neighbors app to allow users to opt out of receiving law enforcement requests. But the default remains that law enforcement agencies have access to all publicly shared content. Requiring individual users to proactively opt out of sharing data cuts against arguments that consent is given “voluntarily.” Whether courts will consider this scheme a kind of covert force is hard to say, but in an age where technology permeates some of the most intimate moments in our lives, I certainly hope that this structure at least gives pause.
V. Navigating Looming Threats to Privacy Hiding in Plain Sight
Constantly changing policies and software updates could unlock technological capabilities with dangerous security implications. Because these updates often go unnoticed by the typical user, they make it difficult to recognize the long-term consequences of home surveillance technology. But consumers should be wary of seemingly insignificant privacy encroachments that, over time, may erode our expectations of privacy.
Yesenia Flores: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Associate Editor.
 The Internet of Things, or IoT, refers to the expansive network of interconnected smart devices that collect, use, process, transmit, analyze, and share data. See Matt Burgess, What is the Internet of Things? WIRED explains, WIRED (Feb. 16, 2018), https://www.wired.co.uk/article/internet-of-things-what-is-explained-iot [https://perma.cc/6JG6-3PVU].
 In Kyllo v. United States, the Court emphasized that, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” 533 U.S. 27, 31 (2001) (citations omitted); see also Silverman v. United States, 365 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”).
 As of June 6, 2020, the Google Play Store reported over 1,000,000 downloads of the application. See Neighbors by Ring, Google Play Store,https://play.google.com/store/apps/details?id=com.ring.neighborhoods&hl=en_US [https://perma.cc/E36E-Q88A]. The Apple Store does not provide download statistics but, as of June 6, 2020, ranked this application #32 in the Social Networking category with over 101,300 ratings. See Neighbors by Ring, Apple App Store, https://apps.apple.com/us/app/neighbors-by-ring/id1218902777 [https://perma.cc/BRV7-UJ9X].
 See Kari Paul, Amazon’s Doorbell Camera Ring is Working With Police – and Controlling What They Say, The Guardian (Aug. 30, 2019), https://www.theguardian.com/technology/2019/aug/29/ring-amazon-police-partnership-social-media-neighbor [https://perma.cc/FX88-C9PG].
 See Caroline Haskins, Amazon Requires Police to Shill Surveillance Cameras in Security Agreement, Vice (July 25, 2019), https://www.vice.com/en_us/article/mb88za/amazon-requires-police-to-shill-surveillance-cameras-in-secret-agreement [https://perma.cc/K793-Q7RG].
 See Alfred Ng, How Amazon Convinces Police to Join the Ring Network, CNET (Aug. 26, 2019), https://www.cnet.com/news/how-amazon-convinces-police-to-join-ring/[https://perma.cc/4YPJ-V6B7]; Caroline Haskins, Amazon is Coaching Cops on How to Obtain Surveillance Footage Without a Warrant, Vice (Aug. 5, 2019), https://www.vice.com/en_us/article/43kga3/amazon-is-coaching-cops-on-how-to-obtain-surveillance-footage-without-a-warrant [https://perma.cc/4PJU-JJLF] [hereinafter Haskins, Coaching Cops].
 Once a user installs a Ring device it is automatically paired with an account in the Neighbors app. But the app is not restricted to Ring device owners. Anyone can download it to “[g]et real-time crime and safety alerts from [their] neighbors and local law enforcement.” Neighbors App, Ring https://store.ring.com/neighbors [https://perma.cc/AM6N-5YXX] (last visited June 6, 2020); see also id. (“Anyone . . . can download and use the Neighbors App for free to help reduce local crime.”).
 “The Neighbors app uses your address to create a radius around your home. If anyone shares an alert on the app about crime or safety within that radius, you’ll get a notification on your phone and tablet. . . You can then comment on these alerts to provide additional information about local issues, give tips to avoid affected areas, share photos or videos to help neighbors stay on the lookout, etc.” Id.
 See Lauren Good and Louise Matsakis, Amazon Doubles Down on Ring Partnerships with Law Enforcement, Wired (Jan. 7, 2020), https://www.wired.com/story/ces-2020-amazon-defends-ring-police-partnerships/ [https://perma.cc/T6UK-2T8U]; see also Jamie Siminoff, Working Together for Safer Neighborhoods: Introducing the Neighbors Active Law Enforcement Map, Ring (Aug. 28, 2019), https://blog.ring.com/2019/08/28/working-together-for-safer-neighborhoods-introducing-the-neighbors-active-law-enforcement-map/ [https://perma.cc/3S24-SN74].
 See Neighbors App, supra note 7; see also Jon Schuppe, Amazon is Developing High-Tech Surveillance Tools for an Eager Customer: America’s Police, CNBC (Aug. 8, 2019), https://www.cnbc.com/2019/08/08/amazon-is-developing-high-tech-surveillance-tools-for-police.html [https://perma.cc/D482-4EG4].
 For example, it seems likely that users who have already shared video footage within the Neighbors app will be more likely to cooperate with a law enforcement request than those who are not actively sharing information within the app.
 See Haskins, Coaching Cops, supra note 6. Ordinally, if law enforcement were seeking an Amazon Ring user’s camera stored video footage directly from Amazon, the Stored Communications Act (“SCA”), 18 U.S.C § 2701 et seq., would apply. Specifically, Section 2703 sets forth the procedures explaining the level legal process needed to obtain the video. Generally, the type of legal process depends on how long the video has been in storage. This means that law enforcement video requests submitted to Amazon Ring could require a warrant, court order, or, at the minimum, a subpoena depending on the circumstances. Under the SCA third-party providers, like Amazon, must also notify the owner of the requested video footage prior to turning over the data. Law enforcement may avoid this requirement by obtaining either a warrant, subpoena, or delayed notice order pursuant to 18 U.S.C. § 2705.
 See id.
 Police departments in Florida, Kansas, and Michigan offer just a few examples of these giveaways, frequently organized and advertised via Facebook. See, e.g. Boyton Beach Police Department (@boytonbeachpolice), Facebook (Sept. 30, 2019),https://www.facebook.com/boyntonbeachpolice/photos/a.10151290898143096/10156990327398096/ [https://perma.cc/GB78-VLJJ]; Olathe Police Department (@OlathePoliceDepartment), Facebook (Feb. 21, 2019), https://www.facebook.com/OlathePoliceDepartment/videos/2077686608983703/ [https://perma.cc/4SQH-PS2H]; Livonia Police Department (@LivoniaPoliceDepartment),Facebook (Jul. 1, 2019), https://www.facebook.com/167698263402702/photos/a.235450469960814/1240651682774016/?type=3&theater [https://perma.cc/DD69-CN92].
 See El Monte Police Giving Away Ring Video Doorbells for Crime Tips, CBS Los Angeles (May 8, 2019), https://losangeles.cbslocal.com/2019/05/08/el-monte-ring-video-doorbell-giveaway-crime-tips/ [https://perma.cc/8ZE6-85D7].
 See Haskins, Coaching Cops, supra note 6; see also Austen Erblat, Orwell at Your Doorbell: Amazon Ring Captures Private Moments and Controls What the Public is Told, South Florida Sun Sentinel (Mar. 6, 2020), https://www.orlandosentinel.com/news/fl-ne-south-florida-ring-doorbell-cameras-police-departments-20200306-nmy5ojwzzfa5hc43dgklitfhoq-story.html [https://perma.cc/4V9E-LL6G].
 See Caroline Haskins, Revealed: The Secret Scripts Amazon Gives to Cops to Promote Ring Surveillance Cameras, Vice (Aug. 6, 2019), https://www.vice.com/en_us/article/wjwea4/revealed-the-secret-scripts-amazon-give-to-cops-to-promote-ring-surveillance-cameras [https://perma.cc/M2Q7-L7PZ].
 Dell Cameron, Everything Cops Say About Amazon’s Ring is Scripted or Approved by Ring, Gizmodo (July 30, 2019), https://gizmodo.com/everything-cops-say-about-amazons-ring-is-scripted-or-a-1836812538 [https://perma.cc/8SR8-8873].
 See Caroline Haskins, How Amazon Helped Cops Set Up a Package Theft Sting Operation, Vice (Apr. 11, 2019), https://www.vice.com/en_us/article/3k3833/how-amazon-helped-cops-set-up-a-package-theft-sting-operation [https://perma.cc/ZL3Y-9JCE].
 Statutes applicable to home video surveillance vary by jurisdiction. In some states, capturing visual footage alone is permissible, while in others capturing audio in addition to visual footage may carry civil penalties. Other states have enacted specific restrictions on whether home surveillance cameras may point towards a neighbor’s property.
 Although most of the protections in the Bill of Rights have been incorporated through the Fourteenth Amendment to apply to federal, state, and local governments, these protections do not generally apply to private conduct. This is known as the state action doctrine. See Civil Rights Cases, 109 U.S. 3 (1883).
 See Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Riley v. California, 573 U.S. ––, ––, 134 S. Ct. 2473, 2494 (2014)) (“The Founding generation crafted the Fourth Amendment as a ‘response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’”).
 See Neighbors App, supra note 7.
 See id.
 See Welcome to Ring Neighbors, Ring https://support.ring.com/hc/en-us/articles/115004841143-Welcome-to-Ring-Neighbors [https://perma.cc/4Z5Z-Q3WH] (last accessed June 1, 2020).
 See Alfred Ng, Amazon’s Ring Wanted to Use 911 Calls to Activate its Video Doorbells, CNET (Sep. 24, 2019), https://www.cnet.com/news/amazons-ring-wanted-to-use-911-calls-to-activate-its-video-doorbells/ [https://perma.cc/ZLB6-MFN7].
 See United States v. Jacobsen, 466 U.S. 109, 130 (1984) (citation omitted).
 Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989).
 Id. at 615.
 Though most cases regarding the status of a private party as a government agent are concentrated in the child pornography context, a similar framework for analysis would likely apply here. In United States v. Ackerman, the Tenth Circuit held that private parties can act as agents of the government, emphasizing that even if the National Center for Missing and Exploited Children “isn’t a governmental entity, that doesn’t necessarily mean its searches escape the Fourth Amendment’s ambit . . . [T]he law has prevented agents from exercising powers their principals do not possess and so cannot delegate.” 831 F.3d 1292, 1300 (10th Cir. 2016). The defendant bears the burden of proving that a private party acted as an agent of the government. See id. at 1301; see also United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000). But the Tenth Circuit applies a fact-intensive inquiry, grounded on common law rules of agency as expressed in the Restatement (Second) of Agency, to determine whether a private party has acted as an agent of the government. See Ackerman, 831 F.3d at 1301; see also United States v. Poe, 556 F.3d 1113, 1123–24 (10th Cir. 2009).
 The exclusionary rule is a judicially-created doctrine which serves as a key way of deterring police misconduct. Under this doctrine, if law enforcement violates the Constitution, any information obtained through those violations shall not be admissible in court. The Supreme Court has held that the sole purpose of the exclusionary rule is to deter police violations of the Fourth Amendment. See Davis v. United States, 564 U.S. 229, 246 (2011).
 Ring does not provide public information about how it determines the size and boundaries of neighborhoods.
 United States v. Jones, 565 U.S. 400, 416 (Sotomayor, J., concurring) (quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004)).
 Carpenter, 138 S. Ct. at 2223.
 Under the third-party doctrine, individuals have no reasonable expectation of privacy in information voluntarily shared with a third party. See Smith v. Maryland, 442 U.S. 735 (1979). While this doctrine has been understood as an expansive exception to the warrant requirement for government access to private data under the Fourth Amendment, Congress enacted additional statutes to protect certain forms of electronic data. The Wiretap Act, 18 U.S.C. § 2518(4), the Pen-Trap Statute, id. § 3123(b)(2), the Electronic Communications Privacy Act, id. § 2511(2)(a)(ii), and the Stored Communications Act, id. § 2701, all specify circumstances in which a third party, like Amazon Ring, may be required to produce information to assist law enforcement.
 See Arjun Kharpal, Apple v. FBI: All You Need to Know, CNBC (Mar. 29, 2016), https://www.cnbc.com/2016/03/29/apple-vs-fbi-all-you-need-to-know.html[https://perma.cc/2NG5-ZF65].
 See Ng, supra note 6; Haskins, Coaching Cops, supra note 6.
 See e.g., Smith, 442 U.S. at 743-44 (“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. . . . [P]etitioner assumed the risk that the company would reveal to police the numbers he dialed.”); U.S. v. Jacobsen, 466 U.S. 109, 117 (1984) (“It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.”).
 Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (citation omitted).
 See id. at 248–49 (“We hold . . . that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.”).
 Id. at 249 (“Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”).
 See The New Control Center Empowers Ring Customers to Manage Important Privacy and Security Settings, Ring (Jan. 30, 2020), https://blog.ring.com/2020/01/30/the-new-control-center-empowers-ring-customers-to-manage-important-privacy-and-security-settings/ [https://perma.cc/SGR5-RUKS].
 “Ring’s emails courting . . . law enforcement agencies include in their signatures a link that points to an LAPD crime study conducted in 2015 claiming that Ring video doorbells reduced burglaries by 55% in six months. Amazon referenced this study when it acquired Ring for $839 million in 2018. The MIT Technology Review examined that study in October 2018, conducting its own independent review and finding that Ring’s claims lacked any evidence to support them. Though burglary rates dropped over a 10-month period, it was a 42% reduction, not the 55% in six months that Ring claims. Within a year after the study, that neighborhood saw its most burglaries in seven years.” Alfred Ng, Ring’s Work with Police Lacks Solid Evidence of Reducing Crime, CNET (Mar. 19, 2020), https://www.cnet.com/features/rings-work-with-police-lacks-solid-evidence-of-reducing-crime/ [https://perma.cc/J6SY-MDFW].
Recommended Citation: Yesenia Flores, Bad Neighbors? How Amazon’s Ring Video Surveillance Could be Undermining Fourth Amendment Protections, Calif. L. Rev. Online (June 2020), http://californialawreview.org/amazon-ring-undermining-fourth-amendment.