By Andrew L. Rossow, Esq.
Today, consumers are engulfed in the world of smart devices. As of the 2016 holidays, the most purchased gift for the season was Amazon’s Echo, a smart-device that the consumer can speak to back and forth to control other smart devices, stream music and audio, and receive updates on news, sports and weather.1
But, what happens when that smart device, such as the Amazon Echo and Google Home, have the potential to be used against you in court….for
you say and
it hears? Welcome to the new age of rules and policy that the courts and rules of evidence will soon have to address.
What in cyberspace is “Alexa”?
dubbed “Alexa” out of three possible names (Amazon, Echo, Alexa), is a cylindrical, spherical (Echo and Dot) smart voice-enabled speaker that allows users to connect wireless and Bluetooth devices to it, receive news and weather updates, stream music and video libraries and connect to third party services such as calendars and e-mail providers. The device is equipped with seven microphones and responds to a wake word—Alexa or Echo, most commonly. When it detects its wake word, it begins streaming/ recording audio to the cloud.3
Amazon has found itself at the heart of a murder investigation. On the night of Nov. 22, 2015, James Bates called Arkansas police stating that he and a few work buddies, including the victim Victor Collins, had stayed up the night before watching football while drinking. Bates told authorities that he had let two of his friends stay at his place and, after waking up the next morning, found Collins’ lifeless body in his hot tub.
After further investigation, police suspected foul play after finding broken bottles and blood spots around the hot tub. Inside the house, authorities found a plethora of smart home devices, including a Nest thermometer, a Honeywell alarm system and an Amazon Echo. Upon this finding, police believed there could be some pertinent information on Amazon’s servers, if one of the individuals that night inadvertently woke up Alexa and it recorded conversation(s). The Bentonville Police Department seized the Echo and served what allegedly is claimed to be an overbroad warrant of all audio records the Echo may contain. In response, Amazon declined to provide any information, as it claims the warrant is too overbroad. While police could extract some information from it, the goldmine (if anything) lies in Amazon’s servers.
Recently, Amazon’s Echo has been the primary subject of this murder investigation. Ironically, it could be a huge witness to the investigation, if it’s allowed to “testify” that is. Yes, you read that correctly.
The Fourth Amendment to the U.S. Constitution provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”4
In this investigation, several questions pertain to the Fourth Amendment present themselves. First, an individual must have
to claim protection under the Fourth Amendment. To have standing, there must be a
reasonable expectation of privacy, which contains both an objective standpoint and a subjective standpoint. To answer this question, we must follow up with a second, yet more complex question: When it comes to smart devices, such as the Amazon Echo, is there a difference in the reasonable expectation of privacy one may have? Better yet, should there be a difference?
The most promising answer is the one lawyers know best …
“it depends.” These smart devices do an excellent job of informing us that they use cloudbased services to connect and store our data. This is how these devices are able to link or connect to our music libraries, phones, calendars, notes, etc. However, while we give these devices permission to connect to our accounts, we also don’t like other groups of people (including law enforcement, users and businesses) having the ability to connect to our devices or extract information from our devices whenever they want. Otherwise, why would we purchase something like this? I guess the answer would be, yes there is a reasonable expectation of privacy that society deems exists with these devices, but at the same time, depending on where the device is placed, how it is used and why it is being used, determines how far that expectation goes. This continues to be an open-ended question.
Second, if there is standing for a person to challenge an issue against the Fourth Amendment, we can look at the right of a person to be secure in his or her
against unreasonable searches and seizures. The last thing any of us expects is to have to worry about what we do in our own homes. Amazon’s “Alexa” is constantly “listening” for its wake word, so the privacy concern is what subject matter the device is storing in its cloud system. The last thing consumers would expect is to purchase into a privacy invasion scenario when we bring it home, worrying about her ratting our every move out to law enforcement, albeit legal or not. This is troubling to say the least. These devices are supposed to
our home, not make it
or the subject of any sort of legal investigation.
Third, the right of a person to be secure in his or her
against unreasonable searches and seizures. While our Framers never included a definition to the term “effects” in the Constitution, courts have still applied the
reasonable expectation of
standard to personal property.
When an individual’s personal property is not inside his or her home or on his or her person, there is little to no protection.5
If we apply Christopher Nolan’s Hollywood film idea, “Inception,“ to this scenario, Alexa is considered personal property within personal property (instead of “a dream within a dream“). Alexa is considered personal property within personal property. In a sense, Alexa is a storage device for other personal information we give it access to such as our calendar, notes, reminders and other personal information. It’s only logical that whatever information of ours that Alexa has been given permission to access or link to, that it also be protected.
no warrant shall be issued except on probable cause, describing the place to be searched and persons or things to be seized. This requires that a warrant specifically and particularly identify the places and persons to be searched and things to be seized. A warrant will be held invalid if it is too broad or requests general items. We all know searches and seizures are illegal without a warrant. For law enforcement to obtain a search warrant, there must be probable cause shown to the magistrate. While there are exceptions to the warrant requirement (not discussed here), none address smart devices, obviously. Again, I must ask the question, should there be?
Considering the pending investigation, Arkansas law enforcement officials recently issued a warrant for Amazon to release all recordings from Bates’s Alexa device. Amazon declined to release such information and stated the following to Engadget:6
“Amazon will not release customer information without a valid and binding legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”
New devices, same law?
The legal system is finding ways to force smart technology into the rules of civil and criminal procedure (both statewide and federally). Realistically, though, it’s the same law being applied or forcibly applied to include these new devices. However, the obstacle and the opinion of many in the field is that our laws are outdated when it comes to smart technology in terms of how courts address it on an evidentiary level.
So, how can smart devices be used in court? If it can be, which we are starting to see and learn more about, when can they be used in court? Technically, these devices do produce “statements” and are advanced enough that it could be considered a person for all intents and purposes. Indeed, that is an entirely different discussion for another time.
Under the Federal Rules of Evidence, evidence is relevant7
it has any tendency to make a fact more or less probable than it would be without the evidence
the fact is of consequence in determining the action.
Additionally, all relevant evidence is admissible, unless
Specifically, statements that are considered hearsay9
are not admissible unless an exception applies.
In the pending investigation of Bates, if the recorded audio were to be extracted and given to the prosecution, these recorded statements are considered hearsay because it was made by Amazon’s device outside of court, for corroborating or proving that Bates either did or did not commit the murder of Collins. Currently, there is no hearsay exception that would allow for “statements” by Alexa to come into evidence as admissible. This could be a problem since we are living in an age of smart devices that we are constantly communicating with to advance our lifestyles. But that’s just it…isn’t it? A smart device… communicating? Sounds like testimony to me, just as accurate as if the person themselves were testifying, no?
Indeed, it would make sense for experts and the writers of the rules to consider amending them to include provisions that address smart technology, whether it is adding a hearsay exception or other such appropriate provisions. This is a long process, though, and many more cases would need to be brought before the court before any such legislation is considered. With cases like this, you can most certainly count on hearing more about the court’s involvement in these matters.
We will continue to see unique cases like this become more common, as augmented reality and virtual reality is attempting to establish its presence in our market. It is only a matter of time before courts will have to make rulings on the impact our technology has and will have on our laws and court system.
president of the Electronic Privacy Information Center, said, “There needs to be a clear legal standard that governs law enforcement access” to these smart devices. These smart devices certainly open the door to warranted privacy concerns on many levels. It will be interesting to see what measures are taken to address privacy concerns and evidentiary concerns during this investigation. In the meantime, I urge all you cyber and technology attorneys to start thinking about these issues with the goal of paving the legal pathway for what could be the establishment of historical precedent for policy in addressing these issues.
Andrew Rossow is a cyber-space and technology attorney in Dayton. Please follow him on Facebook at facebook.com/drossowlaw and Twitter at @RossowEsq.
U.S. Const. Amend. IV.5
Fed. R. Evid. 401.8
Fed. R. Evid. 402.9
Fed. R. Evid. 801-803.10
www.nytimes.com/2016/12/28/business/amazonecho-murder-case-arkansas.html.This article was originally published in the March/April 2017 issue of Ohio Lawyer.