Arkansas Prosecutor and Amazon at War Over Release of Device’s Data Recordings; Consumer Privacy Rights in Question

–by Samantha Pallini

Sources: http://www.cnbc.com/2016/03/29/apple-vs-fbi-all-you-need-to-know.htmlhttp://www.nbcnews.com/news/other/government-can-grab-cell-phone-location-records-without-warrant-appeals-f6C10803204http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/http://fox40.com/2016/12/28/amazon-echo-may-be-the-key-to-solving-a-murder-case/https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf

Abstract: An Arkansas prosecutor believes that a murder suspect’s Amazon Echo data recordings could be used as evidence in the case. However, Amazon continues to refuse to comply with requests for the data.

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“Alexa, how did Victor Collins die?”

On November 21, 2015, James Bates, Victor Collins, and two other friends watched a football game together in Bates’s home in Bentonville, Arkansas. According to an affidavit, Bates went to bed around 1 a.m., leaving Collins in the hot tub. When he awoke the next morning, Bates found Collins floating face down, deceased.

Bates called 911 to report Collins’s death, but police suspected foul play. The Arkansas chief medical examiner ruled Collins’s death a homicide by strangulation with a contributing cause of drowning. Police obtained a search warrant for Bates’s home thereafter.

Inside, detectives found several smart devices, including an Amazon Echo. An Echo is a speaker device that is activated by the wake word “Alexa.” According to Amazon, when a user states the wake word “Alexa,” the Echo device starts recording the audio and streams it into the Amazon cloud. In the cloud, a processor analyzes the user’s request and determines how to respond. The audio recordings are thereafter stored remotely by Amazon, while still allowing for review or permanent deletion by the user at any time.

In the search warrant, investigators stated that they believe the recordings and data of Bates’s Echo could be evidence because “the device is constantly listening for the ‘wake’ command of ‘Alexa’ [which] records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”

On two occasions, Prosecutor Nathan Smith attempted to obtain the data from Amazon, but Amazon refused, stating that it “will not release customer information without a valid and binding legal demand properly served on [it]” and that it “objects to overbroad or otherwise inappropriate demands as a matter of course.” A discovery hearing is scheduled for March 2017.

With February’s FBI-Apple battle over unlocking the iPhone of the San Bernardino shooter, Prosecutor Smith’s request for Bates’s Echo data ushers out 2016 with yet another privacy concern that leaves consumers wondering where the line between privacy rights and disclosure is drawn. However, the Echo’s data retention also invites questions of whether “always on” devices cross a line of their own.

The Echo is one of several new “always on” devices. Google, Samsung, Nest, Canary, Microsoft, and Mattel have also created “always on” devices, which can be activated by phrases such as “Ok Google,” “Hello Barbie,” or “Xbox on.” While these companies assert that their devices only begin audio recordings after the wake command is said, many consumers and advocacy groups complain that wake commands as simple as “ok” and “hello” easily confuse devices into recording at times when they should not be.

The Electronic Privacy Information Center (EPIC) wrote a letter to the Department of Justice in July 2015 requesting that the Federal Trade Commission “determine whether these devices violate federal wiretap laws that prohibit the unlawful interception of private communications. 18 U.S.C. 2510 et seq.”

EPIC argues that Amazon, specifically, has not disclosed their data collection practices, which involve interconnection with a range of third-party companies. Consequently, EPIC asserts that “[b]y introducing ‘always on’ voice recording into ordinary consumer products . . . companies are listening to consumers in their most private spaces.”

While the outcome of Amazon’s refusal to provide Prosecutor Smith with Bates’s Echo data is undetermined, surely 2017 and the growing “always on” market will invite more legal analysis and policy-making in the year to come.

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