Remember when Apple was caught in a storm of litigation for refusing to comply with the FBI’s and Court’s demand to unlock an iPhone? Well now Amazon is caught in the same storm after they refused to cooperate with law enforcement.
In Benton County, Arkansas, prosecutor Nathan Smith has demanded that Amazon turn over information from a murder suspect’s amazon echo. The prosecutor is currently investigating suspect James Bates, who discovered his friend, Victor Collins, dead in his hot tub after a night of drinking. The demand for the amazon echo information resulted from a witness, who said they saw the device streaming music.
According to the prosecutor, the device could hold valuable information as to what happened that night. The amazon echo records sounds every time it hears a “wake word.”[1] The recordings are streamed and stored remotely and can be reviewed over time. This means Bates’ Amazon Echo could have recorded the voice of whoever was at Bates’ house around the time of his Collin’s death.
Should Amazon turn over the echo’s information without a search warrant?
As of now, there has never been a previous case involving smart speakers. Generally speaking, if there is no search warrant, federal courts will ask whether or not there is a reasonable expectation of privacy.[2] If there is, then law enforcement cannot lawfully obtain this evidence without a search warrant.
Is There a Reasonable Expectation of Privacy in the Amazon Echo?
The court could be swayed that there is no reasonable expectation of privacy for this device. Unlike a device that constantly is recording you, such as Microsoft Kinect for Xbox or Samsung Smart Televisions, this device only records when you initiate the “wake word.” Therefore, you know exactly when it is recording you. Joel Reidenberg, founding academic director for Fordham University’s Center for Law and Information Policy, compared this device’s use to a person’s internet search history, which the federal courts have found there is no reasonable expectation of privacy.[3] Specifically, he stated “How is [using the echo] any different from you sitting at your keyboard typing?”
Although Joel Reidenberg makes a great point, liberal courts will most likely find there is a reasonable expectation of privacy. Compare this situation to how the Supreme Court views phone calls. They have held that law enforcement may obtain pen registers from a phone company, which detail what calls have been made, to who, and for how long, without a search warrant.[4] Because the phone company needs this information to bill the user, the court stated there was no reasonable expectation of privacy that the phone company will not keep this record or share it with law enforcement.[5] But, if law enforcement were to record a telephone conversation, a warrant is needed because no reasonable person would expect that a phone company would be listening in and recording all of their conversations.[6]
Unlike a pen register, a user would not expect Amazon to keep records of their interactions with the echo, or at least, would not expect Amazon to keep records of their voice interactions. The use of the Amazon Echo falls more in line with a phone call because it functions with the use of voices, rather than keyboard typing as Reidenberg suggests.
Even with Search Warrant, Amazon refuses to comply.
When Amazon refused to comply with Smith’s demands, they stated, “[they] will not release customer information without a valid and binding legal demand properly served on [them] . . . Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.” Further, an attorney also pointed out that the Amazon Echo’s disclaimer states that it cannot guarantee that its functionality or content is “accurate, reliable, or complete.” Amazon did however provide them with Bates’ subscription information (similar to pen register).
\But now Amazon has been hit with a search warrant, which would appear to be a “valid and binding legal demand properly served on them,” and yet they still refuse to comply. Apple was able to fight this battle until the end, despite receiving a court order as well, but will Amazon succeed in the same fashion?
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[1] For example, Amazon Echo uses the wake word “Alexa.”
[2] Katz v. U.S., 389 U.S. 347, 360 (1967).
[3] U.S. v. Polizzi, 549 F.Supp.2d 308, 393 (E.D.N.Y. 2008); U.S. v. Allen, 53 M.J.402 (CAAF 200).
[4] U.S. v. N.Y. Tel. Co., 434 U.S. 159, 170 (1977).
[5] Id.
[6] Katz, 389 U.S. at 360.
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