Anticipation of Litigation Advisor
"Alexa, Play Country Roads..."
December 25, 2018
By: Jessica L. Robey
Technology . . . It is helpful. It is useful. Some might say they cannot live without it, and many no longer do. Today, many individuals have some type of “smart speaker” within their homes. One of the most popular devices is an Amazon Echo. Amazon Echo (along with other media playing devices; i.e., Google Home, Sonos One) is a smart speaker that operates with artificial intelligence. When a user wishes to activate an Alexa, the user issues a command, stating, “Alexa, [insert whatever you want her to do].”
Each conversation that Alexa hears (once she has been activated by the command, and she is always listening for her command1) is recorded and retained indefinitely until the user manually deletes it off the device itself.2 If the user does not manually delete the data, the questions posed to Alexa and the answers provided remain on Amazon’s servers as well as the device itself. Law enforcement officers, government agencies, and attorneys are intrigued by what might lie on the smart speaker or its servers (e.g., Did a criminal activate the device inadvertently?).3 One question that remains unanswered: Is that data discoverable?
Amazon, the company responsible for the creation of Alexa, has not been forthcoming in turning over data held on its servers. Amazon has stated, “Given the important First Amendment and privacy implications at stake, [warrants] should be quashed unless the Court finds that the State [meets] its heightened burden for compelled production of such materials,4” meaning the government must show that no other reasonable alternative satisfies the asserted need.5“ No other reasonable alternative” is a high burden, but it can be met.
Additionally, Amazon has also stated, “Amazon will not release customer information without a valid and legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.6” However, valuable evidence undeniably may exist on each user’s Alexa device as well as on Amazon’s servers,7 Each Alexa (or other smart speaker) user should be aware that in time, more and more discovery will be centered around the data that lies on a provider company’s server and within each device to determine patterns, behaviors, and other relevant evidence in civil or criminal litigation matters.
1 Command is defined as: "Alexa, [insert whatever act you wish for her to do here]."
2 https://www.businessinsider.com/best-smart-speaker-amazon-echo/#should-i-buy-a-smart-speaker-10.
3 http://fortune.com/2016/12/27/amazon-echo-murder.
4 https://www.cnn.com/2017/03/07/tech/amazon-echo-alexa-bentonville-arkansas-murder-case/index.html.
5 https://thecrimereport.org/2018/03/22/alexa-get-me-the-first-amendment.
6 https://www.forbes.com/sites/tonybradley/2017/01/05/alexa-is-listening-but-amazon-values-privacy-and-gives-you-control/#477019ca7ee6.
7 http://www.nysba.org/CustomTemplates/Content.aspx?id=78359.