Amazon Refuses to Release Echo Recording Without Search Warrant

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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EchoThe frontiers of technology continue to create tension between the consumer’s right to privacy and the government’s desire for information. In the latest clash, police agencies in Arkansas asked Amazon to provide recordings made by an Amazon Echo at the site of a murder scene. Amazon refused. The police then secured a search warrant, which Amazon is resisting.

The case illustrates the need for consumers to be aware of the information that their electronic devices collect and store. Consumers who value their privacy should know that the details of their daily lives, from online drugstore purchases to GPS records of the places they visit, might become accessible to the government. Fortunately, companies like Amazon and Apple have refused to volunteer information in response to government requests, and have insisted that courts understand their concerns about invading a consumer’s privacy.

The Echo as a Murder Witness

The Amazon Echo is a voice-activated personal assistant. It plays music and provides information in response to verbal commands. It can turn on lights and control home security devices, among other functions.

An activated Echo listens for voices. When it hears the word “Alexa,” it responds to commands that follow. Those commands (and anything else the Echo hears) are stored on Amazon’s servers until deleted by the owner.

Sometimes the Echo mistakes another word for “Alexa.” Sometimes it records conversations that have nothing to do with the user’s commands. Since the Echo can record voices that are never meant to be recorded, Echo recordings can be a potential source of evidence.

The potential use of Echo recordings as evidence of a crime has surfaced in Bentonville, Arkansas, where the body of Victor Collins was found in a hot tub at the home of James Bates. Prosecutors, having charged Bates with murder, want to know whether a nearby Echo may have recorded conversations that could be used to prove his guilt.

Bates says he went to bed and found the body in his hot tub when he woke up. The police managed to get the records of Bates’ “smart” water meter — another high-tech device — and discovered his home used 140 gallons of water between 1 a.m. and 3 a.m. The police theorize that Bates was washing away blood, although no facts have been released to suggest that the theory has any connection to reality.

The police acknowledge that they have no reason to believe that the Echo made any relevant recordings. Echo is always listening, but it isn’t usually recording.

Amazon’s Position

The police seized Bates’ Echo, but the device’s internal recording capacity is very limited. It stores nearly all the recordings it makes on the Amazon cloud.

When the police asked for information that was stored by the Echo, Amazon said no. The police obtained a search warrant. Amazon responded by producing information about Bates’ purchase of the Echo and his account information. Amazon objected, however, to the warrant’s demand that it produce two days of Echo recordings.

That isn’t surprising, since consumers might stop buying Echoes if they believed that Amazon would readily turn over recordings of their private conversations to the government. Amazon might also face liability under privacy protection laws if it revealed private information without the owner’s consent. Those laws typically allow companies to avoid liability when they honor subpoenas, court orders, or search warrants, but Amazon contends that the warrant is not valid.

Technology and Privacy

Amazon isn’t the only company that has resisted government efforts to obtain private information that belongs to the company’s customers. As FreeAdvice reported, Apple recently refused the FBI’s command to unlock an iPhone. But Apple’s concern was based on the belief that it shouldn’t be required to defeat its own password encryption. The demand for recordings on Amazon’s servers is materially different from a demand that a company help the government find a way to defeat its own password encryptions.

Still, the policy question raised by the government’s demand for Echo recordings (and data stored by other “smart” devices) is important: “as everyday lives become more intertwined with a growing web of connected electronic devices, should the information gathered by these devices be used in a criminal investigation?” The answer, unfortunately, is not always clear.

Nobody wants a murderer to escape the consequences of the crime. The police routinely obtain warrants to search for criminal evidence. In a sense, searching an electronic database is no different from searching a bedroom or the trunk of a car for a murder weapon.

Of course, nobody can store a murder weapon in the cloud. A more analogous situation might be a search of bank records. The government can force financial institutions to produce incriminating customer records by using appropriate court orders. The Supreme Court has held that the right of privacy in financial records is limited since the account holder has chosen to share account information with the bank.

Emerging Concerns

On the other hand, financial records are not communications, which enjoy special protection in our constitutional system. The Supreme Court recently observed that cellphone calls and text messages “are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.” The same concerns might apply to conversations that are recorded by an Echo.

A number of restrictions apply to wiretap warrants that don’t apply to ordinary search warrants. An Echo recording isn’t a wiretap, but the police in Bates’ case are hoping that the Echo functioned as an eavesdropping device. Perhaps an ordinary search warrant isn’t sufficient to protect the rights of Echo users.

Even when a warrant is issued, the Constitution limits the search that can be conducted. The police can’t search for a stolen car inside a suspect’s filing cabinet because the search would not be reasonable. Amazon contends that the warrant, seeking all recordings over a two-day period, is overbroad. Amazon told the press that it “objects to overbroad or otherwise inappropriate demands as a matter of course.”

In addition, warrants are not supposed to be used to engage in fishing expeditions. A warrant must be supported by probable cause. It doesn’t seem probable that the Echo recorded evidence of the murder.

What Does the Future Hold?

As consumers increasingly rely on technology to stay “connected” to the world, burgeoning quantities of private information are being stored on servers. Privacy advocates worry that technology, while making it possible to gather information easily, also collects an enormous amount of information about our private lives. Consumers generally don’t understand that everything they say may be used against them in court, even if they say it to an Echo rather than a police officer.

The government’s demand for Echo recordings serves as “an important reminder that it’s not always wise to blindly commit to smart devices, even if you’re not planning criminal acts.” The controversy may also point to the need for new legislation governing searches for private information that is stored on servers maintained by companies like Amazon. With smart TVs listening to viewers’ conversations and smart toys listening to children, it may be time for smart laws that respond to privacy concerns associated with evolving technology.

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