- The Washington Times - Monday, May 29, 2017

Legal experts say Congress and the states need to step in to protect Americans’ privacy rights from the proliferation of voice-activated personal assistant devices such as Amazon’s Echo and Google’s Home, after a murder case in Arkansas raised questions about how much the devices are hearing — and whether the government can demand access to its recordings.

Prosecutors in Benton County, Arkansas, demanded Echo recordings from a home where a man was found dead in a hot tub. Prosecutors said they hoped the recording would shed light on how he died as they pursue a murder case against the homeowner.

A legal battle broke out earlier this year over the request, with Amazon balking at the prosecutors’ demand. But the murder suspect cut the fight short, saying he is innocent and agreeing to let the lawyers examine the information.

The case, though, has forced consumer advocates to address how much access the devices have into the inner sanctums of Americans’ homes.

Known as “always-on” devices, Echo and Home are supposed to be activated by a specific spoken word and then follow the commands that come next.

Device manufacturers have taken pains to tell customers that nobody’s listening in without their knowledge.

“We designed the Echo devices very intentionally to only listen when spoken to and also be incredibly conspicuous when it is listening,” Ryan McCrate, general counsel for Amazon, said at a Consumer Federation of America conference earlier this month, according to the National Law Journal.

The devices were among the hottest items during the Christmas season, with analysts saying Amazon Echo alone may have sold 10 million units in December.

Barry Friedman, a law professor at New York University, said it’s time for public accountability laws to govern what type of information law enforcement can get from these devices.

“Because technology is invading our homes and our lives in pervasive ways that we can’t dream of escaping, I think we need a societal conversation about what aspects of that technology are going to be available to law enforcement period,” said Mr. Friedman.

Consumers generally are believed to have consented to a company being able to collect information based on the product’s use guidelines. But whether consumers are truly aware of what that means, and whether companies are able to share the information they collect with the government raise more questions.

“This is an example of what’s going on all over the legal world right now, and it’s very, very unchartered territory,” said Robert Weisberg, a law professor at Stanford.

Mr. Weisberg said the situation with Echo is similar to other issues related to data stored on social media accounts and car GPS devices.

“Here, we’re mostly talking about the Fourth Amendment, and it’s simply unclear about whether I am protected in my home data in virtue of the Fourth Amendment, particularly because of the relationship between the individual and the company,” he said. “It all depends on what the customer contract is.”

Kinley Pearsall, a spokeswoman for Amazon, told The Washington Times that the company won’t release customer information without a binding legal demand.

“Amazon objects to over broad or otherwise inappropriate demands as a matter of course,” Ms. Pearsall said.

But if a prosecutor gets a court order, the company — and others such as Google — could be forced to turn over the information.

Charles Dunlap, Jr., a law professor at Duke University, said that even though the conflict in the Arkansas case was resolved by the attorney handing over the recordings, the issue is certain to come up again.

“Lots of warrants in criminal cases involve material that is the product of First Amendment-protected activity,” said Mr. Dunlap.

He said the wide scope of personal information the devices can capture makes these cases different.

“With respect to Echo, prosecutors would be wise to scope their warrant request to the narrowest time period possible, so as to lessen the risk of capturing speech that is unrelated to any crime but is still First Amendment-protected,” the professor said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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