Careful! Big Brother is Watching (or rather Listening)

By: Enny Olaleye

Earlier this year, social media users may have been surprised to see #LiveListen trending on websites such as Twitter and TikTok. This hashtag represented one of Apple’s newest innovations called Live Listen, an accessibility feature designed to help the hearing-impaired, by permitting users to use their AirPods to turn their electronic devices (iPhones, iPad, etc.,) into a microphone—which sends sound to their AirPods. However, what Apple intended to be a simple new feature for their products quickly transformed into a social media craze, where Apple users discovered that they could use this new function to eavesdrop on other people’s conversations. 

Activating the Live Listen feature is as easy as opening your iPhone’s settings application. Once activated, the Live Listen feature allows users to hear conversations more clearly, by tuning out any background noise present. With your AirPods in your ears and your iPhone near the person you are trying to hear, Live Listen will transmit the audio to your AirPods. While navigating this new feature, users soon found out that when their AirPods were connected, they were able to listen in on any conversations happening in the room the iPhone was placed in—even when they were in a different room from the device. Live Listen remains active until the AirPods are put back in their case or disconnected from their mobile device. This feature means that, even if the connected iPhone or iPad is hidden somewhere out of sight, it can still clearly pick up conversations within the same room. 

Social media users began to label this new advancement as a “game-changer,” publicly admitting the different ways as to how they planned to utilize this feature to eavesdrop on their friends, partners, and even their employers. 

Thus, the question arises: Are AirPods our newest security threat? 

When you think of the word “wiretapping,” or what is commonly referred to as “eavesdropping,” you may imagine a black-and-white scene with a bunch of men in suits huddled around a clunker of a machine wearing oversized headphones—looking intently into the distance. Well, thanks to Ring cameras, high-definition drones, and of course smartphones, wiretapping laws have greatly expanded from what they used to be back in the day of drama-filled, black-and-white criminal television shows. The Electronic Communications Privacy Act of 1986 (ECPA), made it a federal crime to engage in, possess, use or disclose information obtained through illegal wiretapping or electronic eavesdropping. This statute applies to any face-to-face conversations, emails, texts, phone calls, or “electronic communication,” that are reasonably expected to be private. 

“But—I don’t plan to record the conversation; I just want to listen in.” Still…no. 

Aside from the literal action of using AirPods as a wiretapping device, the ECPA also considers it a felony to intentionally intercept electronic communication—which translates to setting up your AirPods to listen into private conversations. Further, the ECPA also considers it a felony to attempt to intercept an electronic communication—which includes the mere action of attempting to set up the LiveListen feature for the purpose of listening into a reasonably private conversation. Regardless of whether you are recording or just listening in, the consequences of even attempting to wiretap or eavesdrop include imprisonment of up to five years (if criminal intent can be proven) and up to a $250,000 fine. 

With the advancement of technology not dwindling down any time soon, it brings up the matter that if your peers can so easily listen into your conversations, what does that mean for those with more resources and power? 

Electronic surveillance, whether through AirPods or government-funded access to encryption tools, is fundamentally at odds with personal privacy. Under the Fourth Amendment, government agencies must obtain a warrant, approved by the judge, before engaging in wiretapping or electronic surveillance. However, while government agencies are required to secure a warrant, their requests for wiretaps are almost never turned down by judges. Once authorized, both wiretapping and electronic eavesdropping enable the government to monitor and record conversations and activities without revealing the presence of government listening devices. 

Legislation concerning wiretapping and privacy rights continuously lag behind the fast-paced advancement of technology. Even so, products as simple as AirPods and iPhones will never be tagged as security threats due to the sheer awareness that they already exist everywhere. The old-time anecdote that “Big Brother is Watching You” is slowly coming into fruition as user privacy can be surpassed at our own fingertips. While the expansion of electronic surveillance was originally meant to reduce serious violent crimes after 9/11, it has only led to the heightened violations of privacy rights amongst those in the United States. 

“So now what?” 

Well, simply put—in most circumstances, listening in to conversations that are “reasonably expected” to be private, without the consent of those participating in the conversation, will most likely constitute a federal crime. Thus, activating LiveListen and utilizing it outside its designated role as an accessibility feature is not a good idea. With respect to protecting yourself and your information—that is a bit more difficult. Avoiding the entire “surveillance economy,” by not using Apple products or avoiding Google and Twitter is just very unlikely (I still haven’t been able to give up Amazon Prime). However, taking action can be as small as searching on secure networks only (with the little lock on the search bar), to as large as applying pressure to your state’s representatives to pass legislation centered on protecting our individual privacy rights is a step in the right direction. 

The bottom line is; without the assurance that our private communications are, indeed, private, privacy rights will continue to be glazed over and decisions based upon free will and personal choice will slowly be replaced by decisions centered in prudence and fear. 

One thought on “Careful! Big Brother is Watching (or rather Listening)

  1. Pingback: Post-Dobbs: A Whole New World of Privacy Law | Washington Journal of Law, Technology & Arts

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