An estimated eight million people use Amazon’s Alexa, the virtual assistant that can make lists, set timers, dial phone calls and even tell jokes. Depending on your setup, it can turn off your lights, set your home security system, and turn on and tune your TV. She recognizes different voices and can key various activities and lists to individuals based on their voices. She can keep track of most everything you’re up to, and she’s always listening.
It sounds like she would be an excellent witness in a courtroom.
Could the government use the data Alexa collects against you in court? The state of the law is in flux, but it’s certain that police and prosecutors will try to do so. In fact, police in Bentonville, Arkansas, issued a warrant against Amazon in a 2015 murder case, according to a student note by Tara Melancon in the Southern University Law Review.
In that case, Amazon resisted the warrant, arguing that handing over the data would violate the customer’s First Amendment rights. However, the murder suspect eventually authorized the police to access the data, so it’s unclear whether Amazon’s argument would have held up in court.
Amazon or the suspect could have argued that seeking Alexa data was an unreasonable search or seizure prohibited by the Fourth Amendment. However, it’s not at all clear that the courts would see it that way. Courts have carved out an exclusion in Fourth Amendment law when individuals turn over otherwise private information to third parties like internet service providers.
Under the so-called “third party doctrine,” some courts have ruled that individuals who do this have given up any reasonable expectation of privacy. This exception (originally developed before the advent of the internet) has been challenged by many scholars, who note that it is nearly impossible to do business these days without turning over private information to third parties like banks and email providers. It should not be considered a “consensual abandonment” of the reasonable expectation of privacy in private information when its required in order to engage in basic commerce in today’s world.
Another possibility is that Amazon and its competitors could put themselves in the role of “information fiduciaries.” A fiduciary is a person or entity that has taken on the legal duty to act in the client’s best interest. If the companies were able to get the label to stick, they could use it to try to defeat the third party doctrine. They might argue that clients don’t hand over their private information willy-nilly but into the hands of a trusted party.
The First Amendment could hold some promise in preventing the use of this type of data by police and prosecutors. When a legitimate First Amendment interest is asserted before the courts, the government generally has to show not only that it has a compelling interest in the policy at issue but also that there is no less-restrictive alternative to meet that compelling interest other than the policy it is trying to defend.
These arguments are untried, but they may lead the way to a new understanding of the privacy rights that the U.S. Supreme Court has repeatedly found in the Constitution. Surely, most people would agree that some form of privacy from the government still exists in Alexa’s world.
