Alexa – Can You Give Me Some Privacy?
By: Erica Sun
“Alexa, tell me what the weather is like for today.” That is just one of the many possible commands to which Amazon Echo (“Echo”), through the Alexa Voice Service (“Alexa”), can respond. Echo, which is equipped with seven microphones and “beam forming technology,” is a “hands-free” speaker that utilizes Alexa, its “brain,” to perform functions requested by the user. Alexa is based on Cloud computing so the more she is used, the more intelligent she becomes Through users’ interactions with her, Alexa becomes familiar with users’ predilections, manner of speaking, and lexicon. With Alexa, Echo can conduct a wide variety of tasks, such as playing your favorite song or telling you who won today’s football game. Echo also has “skills,” which are “voice-driven Alexa capabilities.” Users can choose to acquire more of these “skills,” ranging from daily Jeopardy games to meditation tracks. Echo’s compatibility with smart home technology also allows it to perform such services as turning on the lights or cranking up the temperature in a house.
How Does Amazon’s Echo Work?
Echo has a voice recognition feature that makes it capable of responding to its users’ requests from a distance. To enable Echo, the user just has to mention a “wake word,” which is typically “Alexa,” but can be switched to “Echo,” “Computer,” or “Amazon.” Once the “wake word” is used, Echo links to Alexa and is at the beck and call of its user, ready to assist as requested. Any commands or requests given to Echo are sent to Alexa in the Cloud, which takes in what the user has asked and either delivers what it has been asked, or informs the user that it does not comprehend the request or cannot carry out the task. A user knows when Echo is transporting information to the Cloud as a blue light ring on it is activated. When Echo is externally muted—through a button on the top of the speaker—the light ring glows orange, indicating that communication is impossible.
This begs the question: given that Echo is attentive to the “wake word,” is Echo listening in on and recording what users are saying at all times?
Amazon’s Echo Device and its Role in a Murder Case
This became a crucial question during the investigation of a 2015 Arkansas case involving the murder of Victor Collins. In November 2015, Collins was found dead in a hot tub at the house of his co-worker, James Bates. The police deemed Collins’ death a homicide and suspected Bates as the perpetrator. Bates’ Echo device became relevant when a person at Bates’ home the night of the death remembered that there was music playing from the Echo. The police “seized” the Echo and in a search warrant, requested Amazon to turn over “audio recordings, transcribed records, or other text records related to communications and transactions” (“recordings”) from the device. In the warrant, the affidavit stated that, “[t]he Amazon Echo device is constantly listening for the ‘wake’ command of ‘Alexa’…and records any command, inquiry, or verbal gesture given after that point, or possibly at all times without the ‘wake word’ being issued.”  If Echo is truly recording a user at every instant, this raises troubling privacy implications. However, and perhaps thankfully, it turns out that the State’s understanding of how Echo works contrasts with Amazon’s description of how Echo actually functions.
Amazon’s Motion to Quash the Search Warrant
According to Amazon’s Alexa and Alexa Device FAQs, a user will know when what she is saying is transmitted to the Cloud because “the light ring around the top of [her] Amazon Echo turns blue, to indicate that Amazon Echo is streaming audio to the Cloud.” Thus, as an Amazon representative put it, Echo only records and sends information to the Cloud after the “wake word” activates the device.
When the police in the Collins case sent Amazon a “preservation request” for information regarding Bates’ Echo, Amazon acted in accordance with the request. However, when Amazon was asked, via a search warrant, to hand over information about Bates’ Amazon account as well as recordings regarding Bates’ Echo, Amazon refused. While Amazon did give the police details about Bates’ Amazon subscription, it refused to provide the Echo recordings, employing the First Amendment as part of its defense.
In its motion to quash the search warrant, Amazon argued that the Echo recordings for a user’s Echo device are “protected speech under the First Amendment” as they typically consist of “(1) the user’s speech, in the form of request for information from Alexa, and (2) a transcript or depiction of the Alexa Voice Service response conveying the information it determines would be most responsive to the user’s query.” Regarding users’ requests, Amazon cited case law in support of its position that “[a]t the heart of that First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery.”
Interestingly enough, Amazon also contended that replies from Alexa fall under the First Amendment’s protection as well. Amazon argued that because Alexa’s responses could have “expressive material, such as a podcast, an audiobook, or music requested by the user” and as “the First Amendment protects as speech the results produced by an Internet search engine,” the responses are protected. To further support its refusal to deliver the Echo recordings to the police, Amazon contended, using language from Search King, Inc. v. Google Tech., Inc., 2003 WL 21464568, at *4 (W.D. Okla. May 27, 2003), that Alexa’s choice in what it decides to convey to its users is “constitutionally protected opinion.”
In the motion to quash, Amazon argued that the burden would fall on the State to prove “(1) it has a ‘compelling interest’ in the requested information and (2) that there is a ‘sufficient nexus’ between the information sought and the underlying inquiry of the investigation.” Amazon reasoned that just as this “heightened level of scrutiny” is generally used in situations where “First Amendment-protected material” is sought by the government, so this benchmark should be utilized in the State’s request to get Bates’ Echo recordings. Amazon argued that requests of that nature would “chill” people who have Echos from using those devices if the government could easily get its hands on the content of their interactions with their Echo devices. Should the State actually meet this standard of proving this “compelling interest” and “sufficient nexus,” Amazon asked the court to review the recordings in camera to decide “if…[the] material meets the heightened requirements for its production.”
According to Amazon, the police in the Collins murder case could have retrieved “any stored audio recordings, transcripts of recordings, and records of responses from Alexa [that] would be accessible on the cell phone” if Bates had the Alexa app on his cell phone. Amazon mentioned in the motion that while recordings made to an Echo device are kept on its servers and are not on the actual device, users can review requests they have made to Alexa via Echo through the Alexa app on their “Android, Apple, and Fire devices, and desktop browsers” and also have the option to “delete any or all past recordings” they may choose.  In the case of Bates’ Echo device, Bates had apparently not deleted any recordings during the period of time relevant to the State’s search warrant.
The privacy issues raised in the Collins case are akin those in the 2016 standoff between Apple and the FBI. There, Apple declined to obey the FBI’s request to make a backdoor allowing the FBI to access the contents of one of the San Bernardino shooter’s iPhone. (This was an issue previously discussed in one of BTLJ Blog’s posts). This standoff ultimately ended when the FBI found a third party to help it unlock the shooter’s iPhone. In a way, the situation here involving Amazon and the prosecution over Bates’ Echo recordings was also never truly resolved as Bates ended up giving Amazon permission to furnish his Echo recordings to the prosecution.  According to his lawyers, Bates chose to do so because he “is innocent of all charges.” Amazon agreed to comply with Bates’ request. Following that, a hearing that was scheduled to take place in March of this year regarding this issue involving Amazon’s Echo recordings did not take place.
As the Collins murder case is still ongoing, it remains to be seen whether the recordings from Bates’ Echo device can shed any light on what happened the night of Collins’ death. There may be a case in the future that will decide the question of whether Echo recordings are protected speech. However, in the meantime, there may be relief to some Echo users to know that Echo is not recording them unless a “wake word” is spoken.
 Disclaimer: The author does not have an Echo Device so all the descriptions are based on online explanations of how the technology works.
 https://www.amazon.com/gp/help/customer/display.html?nodeId=201602230; https://www.amazon.com/dp/B019G0M2WS;
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