By Alexis Fisher
How technology influences our lives and infringes on our rights is a question that courts across the county struggle to answer. In Bentonville, Arkansas, the court was asked to decide whether Amazon had to turn over recordings from the Amazon Echo device located in the home of James Bates. Mr. Bates is accused of murder after his co-worker, Victor Collins, was found dead in Mr. Bates’ home after a night of partying with another co-worker and Bates. Bentonville police collected the Echo device as evidence. The prosecutor subpoenaed Amazon for access to Bates' account information and any recordings or transcripts associated with the Alexa device. Amazon sent the account information but refused to give up any more information than that. Amazon filed a motion to quash the subpoena arguing customer privacy and that the data/recordings were protected under the First Amendment.
How does the Amazon Echo device work?
The Echo is a device that while on, captures sound awaiting certain command words to activate the Alexa Voice Services (AVS), which runs through a cloud computing service by Amazon. If you take apart an Echo device, you will find several speakers, microphones, and a small smart computer. Alexa responds to commands such as "Alexa, what is the weather?" or "Alexa, play music," and responds accordingly. The Alexa can be programmed further for more actions, such as enabling smart home devices. The worry about this technology stems from its voice activation, the very thing that makes this technology so appealing. The microphones are always on, listening for the activation word, usually “Alexa” or “Amazon” depending upon its programming. After the awake word, it automatically starts recording after the voice command and uploads it into the Alexa app, as well as Amazon's storage cloud.
How is this protected free speech?
The First Amendment guarantees the right of freedom to exercise religion, speech, assembly, and have power of the press. Protected speech can be anything from political beliefs, reading and viewing habits, to the actual words one speaks, withholding hate speech or speech that incites immediate harm or violence to others. Amazon argued that these protected forms of speech may be found on the Echo device, pursuant to its voice activation and expressive content that the user may access through the Echo.
In Amazon’s motion to quash, the company argued that it “seek(s) to protect the privacy rights of its customers when the government is seeking their data from Amazon, especially when that data may include expressive content protected by the First Amendment.” This expressive content they are trying to protect is the verbal requests posed to Alexa by the user, as well as the expressive material contained within Alexa’s responses, as they are protected speech owned by Amazon. This is two-fold argument. For example, Amazon is arguing that if one was to state “Alexa, tell me about ISIS,” that search query question would be protected free speech and Alexa’s answer would also be protected free speech.
Courts have previously determined that a search engine’s results are protected by the First Amendment, regardless of censorship claims. Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014). The actual queue of ‘results’ Alexa gives the user, or the actual content Alexa provides, is outright owned by Amazon as they produced it and programmed the shown results for the user. Langdon v. Google Inc., et al. WL 530156, Civ. Act. No. 06-319-JJF (D. Del. 2007) held that search engine providers have First Amendment protection of their search results.
As for the second issue, whether the user’s question posed to Alexa is protected speech, is not as well defined. Amazon argues that not only the results produced by Alexa, but also the voice recordings and transcripts of the user’s commands to Alexa should also be protected by the First Amendment as these records contain expressive content. Some courts have agreed with Amazon and found that search terms are protected free speech. “Amazon and the Intervenors have established that the First Amendment protects the disclosure of individual’s reading, listening, and viewing habits.” Amazon.com LLC v. Lay 758 F. Supp. 2d 1168 (W.D. Wash. 2010). Amazon's motion to quash the search warrant explains further, “Courts have recognized that government demands for records of an individual’s requests for and purchases of expressive material implicate First Amendment concerns.” Such materials and records are expressive in that they may release very private ‘expressive’ information about the individual. Such expressive materials, especially purchases of literature or movies, has been protected in cases such as United States v. Rumely, 345 U.S. 41, 57-58 (U.S.S.C. 1953), McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (U.S.S.C. 1995), and In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Media L. Rep. at 1599-1601 (U.S. Dist. Ct. DC 1998).
Other courts have disagreed and found the actual search history or input to the search engine or device is not protected by the First Amendment. In United States v. Allen, 53 M.J. 402, 409 (C.A.A.F. 2000), the Court allowed the seizure and use of search history to be used even without a warrant. The reasoning was that there is little to no reasonable expectation of privacy when using the Internet, as the information is being released to the internet access provider regardless. Therefore, the expectation of privacy is not supported by the First Amendment when using a search engine.
There is an additional issue with devices such as Alexa, however. A device that is always listening for a command word, and then begins a sound recording whenever the command word is given, potentially allows for a lot of intrusion on an individual in their own home. Modern ‘smart’ electronic devices contain a multitude of data that can “reveal much more in combination than any isolated record,” allowing those with access to it to reconstruct “[t]he sum of an individual’s private life.” Riley v. California, 134 S. Ct. 2473, 2489 (U.S.S.C. 2014). Amazon argues that First Amendment protection should be extended not only over Alexa’s searches and responses, but as well as the actual recordings and transcripts of what the user is commanding Alexa to do.
Here the issue was not decided by the Arkansas court as the defendant consented to release the recordings and data from his Echo device. If he had not consented, one can wonder if Amazon’s argument against releasing the records would have been successful. Their argument is trying to protect not only consumer rights and privacy, but against infringements upon the First Amendment right to freedom of speech. If Amazon had been forced to give up the information pursuant to the warrant, it could have set a dangerous precedent leading to compromised First Amendment rights for individuals owning any sort of voice activated device - fueling the worry that these devices can be used against them.