ALEXIS MASON— It is a typical morning when my mom yells, “Alexis Karina Mason, come to the kitchen right now!”
A multi-color light illuminates around the top rim of Amazon’s “Alexa.” “Sorry I did not understand you,” it replies. This is the daily exchange with Alexa in my household. The device is most often triggered unintentionally due to the similarity between its “wake word” and my name.
After perceiving a wake word, the device starts to record anything that comes flying out of my mother’s mouth for the few seconds it would take to make a request, and then sends it to Amazon’s computer servers. The servers then interpret the request and tell Alexa how to respond. In fact, the “always on” Echo speaker makes recordings of audio the device hears from a fraction of a second before it detects a wake word until it judges the command to be over.
As received, Amazon’s Alexa or Echo product is supposed to be triggered by “Alexa.” However, the device’s app allows the user to change the wake word to one of three other alternatives—Echo, Amazon, or Computer.
Alexa or Echo owners can find out how many times their device has inadvertently recorded them and the content of those recordings. Amazon’s smart phone app lists all recent voice requests, complete with the ability to play the original audio file.
If a device owner happens to find something unflattering, he or she can always delete that individual recording through the app, or can delete all of their recordings on Amazon via its website. It’s also possible to turn off the microphone manually.
Although certainly not ideal, there seem to be few concerns, if any, when Alexa records my mom’s rants and stores them on an Amazon server. The worst speech Amazon, or anyone entitled to the Amazon computer server information, would have access to would be a slew of curse words.
But what happens when Amazon servers save something the speaker intended to keep private? Or, even worse, what happens when Alexa records, unbeknownst to a speaker, because she was unintentionally triggered? Consider the following case.
The Bate’s Murder Case
James Andrew Bates, an Arkansas man, is accused of killing Victor Collins, his friend and a former police officer, after a night of drinking and football. Collins was found floating face up in Bates’ outdoor hot tub the next morning in November 2015.
Bates called the Bentonville, Arkansas police department to say he had found the body.
According to court records, suspected blood spots were found around the rim of the hot tub and one of Collins’ eyes and his lips appeared swollen. The Arkansas State Crime Lab later ruled that Collins death was a homicide by strangulation with a contributing cause of drowning.
Bates pled not guilty to first-degree murder.
Authorities continued to investigate the scene and found evidence, as well as witness statements, that were inconsistent with Bates’ claims that he was asleep when the homicide occurred. In December, the Bentonville, Arkansas police department issued a warrant to Amazon demanding records for an Echo device belonging to Bates, who is scheduled to go on trial for the murder this year.
Detectives said they learned that music had been streamed to the back patio at the time of death, which might have been controlled via the Echo’s smart assistant Alexa. If so, Bates’ claim that he was asleep would be discredited.
Amazon resisted the warrant, saying authorities hadn’t established that their investigation trumps a customer’s privacy rights. In response, Benton County prosecutors asked a court to force Amazon to provide data that Bates’ Echo may have collected.
Lawyers for Amazon filed a motion asking the judge to throw out the request for Echo data: “Given the important First Amendment and privacy implications at stake, the warrant should be quashed unless the Court finds that the State has met its heightened burden for compelled production of such materials,” Amazon’s court filings read.
The First Amendment: as Applied to Alexa or the Consumer?
Among other values, the First Amendment of the United States Constitution protects freedom of speech. The Supreme Court has struggled to define what constitutes protected speech.
“At the heart of that First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery,” wrote Amazon’s legal team in its Bates case motion. Amazon later explained that the protections for Alexa were twofold: “The responses may contain expressive material, such as a podcast, an audiobook, or music requested by the user. Second, the response itself constitutes Amazon’s First Amendment-protected speech.”
Citing a previous case involving Google, Amazon said that Alexa’s decision about what information to include in a response, like the ranking of search results, was a “constitutionally protected opinion” and was therefore entitled to “full constitutional protection.” In the Google case, the court noted that the company’s search results reflect “individual editorial choices” about both opinions and facts—two categories of speech that enjoy full First Amendment protection. By “select[ing] what information it presents and how it presents it,” Google was exercising classic free speech, not unlike a newspaper editor might.
Amazon also cited a 2010 ruling in its favor, in which the company was joined by the ACLU and argued against the North Carolina Department of Revenue’s attempt to acquire customer purchase histories. “The fear of government tracking and censoring one’s reading, listening and viewing choices chills the exercise of First Amendment rights.”
Another argument aiding Amazon is that companies are undeniably accorded free speech rights. “Of course, Amazon itself has free speech rights,” noted Toni Massaro, professor at the University of Arizona College of Law, in an interview with FORBES. “As long as Alexa can be seen as Amazon, there is a protected speaker here.”
Although Amazon has plausible support, the Free Speech Clause and First Amendment protection is not absolute.
The reasonableness of any protected speech restriction is evaluated in light of Supreme Court guidelines. First, a restriction must be content-neutral. Second, a restriction must be viewpoint-neutral. Third, a restriction must burden speech no more than is necessary to serve an important government interest.
Therefore, in its motion, Amazon added that it would refuse to offer up the data “unless the Court finds that the State has met its heightened burden for compelled production of such material.”
Professor Massaro added that algorithms are tough to categorize and may not class as speech. “And even if they are speech, they may not always be protected from government regulation. That something may be covered by the First Amendment does not mean it is protected.”
Masaro said that “the free speech arguments that favor ‘machine speech’ are surprisingly plausible under current doctrine and theory,” pointing to a paper she co-authored on the subject.
Unfortunately, the First Amendment protections in owning an Amazon Alexa device will not be delineated as Bates and his attorney agreed to release the Amazon records.
Moot, but not for long.
This case highlights the pressing issue of privacy in “The Internet of Things.” The uncertainty associated with increased connectivity in today’s day leaves many consumers in a twilight zone. There are many legal scholars, as well as everyday civilians, steering clear of smart assistants in their own homes.
“If we didn’t adopt technology because of privacy concerns, there would be a lot of technologies people wouldn’t use right now,” said ACLU senior analyst Jay Stanley in an interview with Tech Crunch. “I think people use technologies that are troubling from a privacy point of view, but they also feel uneasy about it. One of the risks is that we end up in this twilight zone where everyone knows that their privacy is not being protected but also tries to adapt and live in the real world. We can do better than that.”
As with most areas of the law, clear, delineated legal precedent can help address some of the uncertainties surrounding smart home devices.