Amazon’s Echo is a robot that sits in your house and listens. The virtual personal assistant can be summoned into action by saying its name, Alexa, and will then act on commands, like ordering a dollhouse and cookies when asked to do so by a too-clever kindergartener. And because it works by listening, Alexa is an always-on surveillance device, quietly storing snippets of information. Which has placed a particular Echo unit in an uncomfortable role: possible witness to a murder.
On Nov. 22, 2015, Victor Collins at the home of James Bates in Bentonville, Arkansas. The night before, Bates invited friends, including Collins, over to watch the football game, and after Bates reported Collins death, police collected some evidence of struggle from the scene. Still, there is more potential evidence police would like to use in the case: audio recorded by the Echo, which could illuminate more about what transpired that night.
That evidence is held by Amazon, as data on Amazon servers, and to gain access to it, police filed a search warrant in December 2015. For over a year, Amazon responded in part to the requests: providing police with the subscriber information for the account, and noted that police tried to access the suspect’s cellphone, as a way to access his Echo account, but were unable to do so.
On Feb. 17, 2017, Amazon filed a motion to quash the warrant for the recordings from the Echo, arguing that such a search violates first amendment and privacy rights. So does Alexa, the program that speaks through Echo on behalf of Amazon, actually have privacy rights?
“What Amazon’s doing is drawing on a line of cases that say there is a connection between freedom of expression, which is protected by the First Amendment, and privacy. That connection is that when you have government surveillance—especially of intellectual activity, let’s say listening to music or reading books or buying books or even using the search engine,” says Margot Kaminski, a professor at Ohio State University’s Moritz College of law, who specializes in law and technology, “that surveillance implicates intellectual freedom in a way that’s important for free expression.”
Given the weight of precedent, it’s likely this case won’t be decided on whether Alexa itself has speech rights. The heart of the matter, as Amazon frames it, is whether or not a user’s speech with Alexa is protected by the First Amendment.
“The core of their argument is the government shouldn’t get to gather the recording of the user’s intellectual activity—their queries to Alexa, the books they purchased, that sort of stuff—without some kind of heightened protection,” says Kaminski. “Because this is First Amendment activity, we worry about the chilling effect.”
That’s probably where the case will go: whether a warrant is sufficient to override the user’s First Amendment rights. There’s a Supreme Court case that backs this up, Zurcher v. The Stanford Daily, which ruled that a warrant was enough for police to collect photographs from a student-run newspaper about a protest that turned violent. And even if Alexa is granted full First Amendment protections, it’s not clear that that is sufficient to stop the warrant.
Still, Amazon isn’t just arguing that the search warrant is insufficient because it threatens users’ speech. There are other, broader claims in the motion that, if the court takes them up, could change how the law sees a whole swath of devices.
Let’s back up just a minute. Echo is an internet-connected device, with a microphone and a speaker, that people set up in their homes with the knowledge that Echo is listening. Once activated, people interact with their Echo units through Alexa, which sounds a lot like two humans having a conversation, but is in effect one person providing information to an extension of a fast technology company that can record what is said, store it in files far outside the user’s home, and use that information to play music, search the internet, or even make purchases. To go back to privacy law, we can look at how courts reacted to another technology that took words spoken inside the home and relayed those words to someone else, outside.