In 1890, Supreme Court Justice Louis Brandeis and Samuel Warren published “The Right to Privacy” in the Harvard Law Journal. Since then, numerous courts and legal academics have cited this essay as an important work in the right to privacy. In fact, in the 1928 U.S. Supreme Court case of Olmstead v. United States, Justice Brandeis defined the right to privacy, or the “right to be let alone,” as he termed it, as “the most comprehensive of rights, and the right most valued by civilized men.”

Nonetheless, this right is not absolute. There is a balancing test between government involvement and the right to privacy. In fact, Justice Brandies supported the right to privacy while interweaving the need for some government regulation of private enterprise.

The recent surge of advanced technology challenges both courts and legal scholars in regard to the limitations of a person’s right to privacy. One product that will continue this discussion is the newly-released Amazon Echo. The Echo has the ability to provide voice interaction; play music, podcasts, and audiobooks; create lists; set alarms and other timing devices; and provide weather, traffic, and other real-time information. It can also control several smart devices. While multi-faceted, voice commands can activate the Echo, thereby recording statements and conversations. Critics refer to the Echo as law enforcement’s dream due to its recording ability inside a person’s home. Echo technology raises these questions:

  • Can the police obtain the recorded content from an Echo in an investigation?
  • Can this be used as evidence in a criminal investigation?
  • Are privacy expectations compromised?

How It Works

Amazon created the Echo as a “smart” speaker, which responds to the name “Alexa.” Alexa—like Siri, Google Now, and Cortana—is a voice assistant, but unlike them, it was created for the common spaces of the home. It is so advanced that it can hear you across the room, even when music is playing, and it can respond without ever being touched.

The service that processes this recording is called Alexa Voice Services (AVS), which processes and interprets verbal commands. If you ask for the time, the AVS sends back an audio file of Alexa telling you the time, which the Echo plays back. If you ask Alexa to play a song, the AVS will search the music service you have set up for that song and, once found, sends a command back to the Echo that sets it playing the requested music. It can even order pizza, provided that there is a link to the pizza parlor, by ordering pizza with the owner’s voice.

Currently, Amazon is adding more features, called “skills,” to Alexa. This means that Alexa will eventually control items that are not on its official list. Note that Alexa needs an internet connection for AVS to work, and some recorded information is stored in the cloud on Amazon’s servers.

The James Bates Case

Currently, police in Bentonville, Arkansas, are investigating a homicide, and their main suspect is James Bates. Bates hosted a party with co-worker Victor Collins last year. The morning after the party, Bates called police to his home and claimed that Collins drowned in a hot tub after Bates had gone to sleep. Police arrived and found bleeding and bruise marks on Collins, suggesting foul play. Bates had an Echo in his home. The police requested and received a warrant for Bates’s Echo, which they believe may contain information about Bates’ activities prior to and during the murder. Police retrieved data from the Echo and want Amazon to release other information recorded by Echo that may be on its servers. Amazon, in a statement, said it “will not release customer information without a valid and binding legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”

Constitutionally Protected Right to Privacy

While the U.S. Constitution does not explicitly state that a person has a right to privacy, the Supreme Court of the United States (SCOTUS), through case law, has stated many times that such a right is constitutional. In the 1965 case of Griswold v. Connecticut, the SCOTUS struck down a law banning contraception because of a constitutional right of marital privacy. Building onGriswold was the 1973 case of Roe v. Wade, wherein the SCOTUS struck down a state ban on abortion because it interfered with a mother’s right to privacy.

The SCOTUS expanded this right in the 2003 case of Lawrence v. Texas, wherein the SCOTUS struck down state sodomy laws, thereby making homosexual activity legal. Specifically, the SCOTUS stated that moral disapproval should not interfere with a right to privacy.

Moreover, the SCOTUS ruled on technological issues during the case 1967 case of Katz v. United States. In that instance, Charles Katz made illegal gambling wagers over a payphone while inside a phonebooth. Unbeknownst to Katz, the FBI tapped the call. Later, the FBI arrested him. The SCOTUS ruled that tapping a phone booth violated Katz’s right to privacy because a person has a “reasonable expectation of privacy” inside a phonebooth. This ruling resulted in nullifying Katz’s arrest.

Nonetheless, the right to privacy is not absolute, as noted in the 2011 case Sorrell v. IMS Health Inc. In that case, the SCOTUS struck down a Vermont law that bars disclosure of prescription data for marketing purposes because the law violates data mining firms’ free speech rights. Similarly, Justice Clarence Thomas wrote in his dissent in the Lawrence case that there is no blanket constitutional right to privacy. Thus, there is a balance between the right to privacy and other competing interests.

Right to Privacy and Security

In the last several years, security interests have undercut the right to privacy. In the aftermath of the terrorist attacks of September 11, 2001, security interests have encroached the boundaries of the constitutional right to privacy. In response to the attacks, Congress passed the 2001 PATRIOT Act, which allowed the NSA and other government agencies the ability to collect metadata about who is calling whom. While the 2015 USA FREEDOM Act limited the NSA’s ability to collect data, the NSA still has broad authority to collect data for security purposes.

The December 2015 San Bernardino shootings emphasized this point. Terrorists Rizwan Farook and Tashfeen Malik took guns and opened fire, killing fourteen and seriously injuring twenty-two. The FBI reported that they were inspired by foreign terrorism. In the aftermath, the FBI wanted to access certain data that was locked on Farook’s iPhone, so it tried to compel Apple to unlock the phone. This lead to an Apple/FBI legal clash, wherein Apple, a champion of phone privacy and security, did not want to comply with the FBI directive. In a court brief, Apple stressed that its customers have a constitutional right to privacy, which the FBI was seeking to undo.

In terms of security v. privacy, there is no bright-line rule defining when security concerns improperly encroach on privacy rights. Surely this issue will be litigated.

Third-party Doctrine

In the 1979 case of Smith v. Maryland, the SCOTUS created the third-party doctrine, which states that people who voluntarily give information to a third-party have no reasonable expectation of privacy. In that case, the police asked for a pen register, which is a device that records telephone numbers, to determine who was making threatening phone calls. The police requested a search warrant based on the pen register, which led them to incriminating evidence against Smith. Smith invoked his right to privacy based on the Katz case. The court rejected the defendant’s claim, stating that the defendant had no reasonable expectation of privacy in the phone numbers that he dialed because he voluntarily disclosed those numbers to the phone company.

In that case, the SCOTUS did not distinguish between a human or automated operator in terms of the third-party doctrine. Thus, the third-party doctrine applies even to a machine.

Echo Privacy Issues and the Third-party Doctrine

As mentioned, the right to privacy does not apply when voluntarily given to a third-party, which is broadly construed to include a machine. Thus, the third-party doctrine applies to an Echo, as well. Any expectation of privacy is waived the minute someone purchases the Echo, since it has the ability to record, which is disclosed by the manufacturer.

This is just a symptom of the evolution of technology and its effect on privacy. It began with smart phones and social media and is morphing into other areas. Now, by purchasing these technological advancements, people are effectively waiving privacy rights through the third-party doctrine.

Therefore, in addressing the questions above, police should be able to obtain records from the Echo for use in a criminal investigation. The theoretical expectation of privacy still exists; it is consumers purchasing technology for their homes who are waiving their rights.

Nonetheless, a police investigation that uses an Echo for evidence would face some challenges. Is the recording suggesting criminal activity really the voice of the defendant? How good are Alexa’s recording skills? While the Echo is very advanced, how would those advancements play out in a courtroom?

Guests

The next question is how far this goes. Do guests who are visiting a home with an Echo have an expectation of privacy? Would the third-party doctrine apply to them as well when they did not purchase it? If the Echo becomes as prevalent as the smartphone, does that mean society as a whole waived their rights to privacy in the home? Time will tell.

Law will continue to evolve as cutting edge technology evolves. Places once deemed private, like inside the home, will lose that status with the onset of technology. The sophistication of the Amazon Echo is not just a marvel because of its technological genius; it is a marvel because of its legal effect.

Veteran litigator and television guest commentator Joseph M. Marrone, Esquire is a leader in the intersecting world of law of technology, civil rights, criminal law and products liability. He can be reached at 215-732-6700 or 866-732-6700.

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