Technology

Alexa On The Witness Stand Is Going To Be Killer For Privacy

The Internet of Things can and will be used against you.

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(via Getty Images)

Like many people of certain age, I fear inviting an Amazon Cylon into my home to record my every move simply because I’m too lazy to turn on my stereo. Unlike most people, I have sound legal reasons for distrusting Alexa that buttress my irrational fears of robots.

I do not want a voice-activated recording device in my home, because I do not know what the state might do with that information. Granted, I am not in the habit of committing crimes. But, in the privacy of my own home, I’ve surely contemplated a few. And I know enough about civil liberties — or the lack thereof — that I know that I might not be able to keep my fanciful conspiracies away from state intrusion should the state decide to target me, for whatever reason.

I don’t have a reasonable expectation of privacy in my vehicle, though I would if the Fourth Amendment were up to me. I’m damn sure not about to cede my reasonable expectation of privacy in my kitchen.

My concerns are not the stuff of near-future law fiction. There’s a case going on in New Hampshire where a judge has ordered Amazon to turn over Echo recordings to prosecutors who are trying to make a murder case.

Strafford County Superior Court Justice Steven M. Houran ordered Amazon to turn over recordings that may have captured the death of two women, and implicated Timothy Verrill, a suspect charged in their deaths.

The order was made on probable cause grounds, which has some legal analysts concerned. From Legal Tech news:

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Andrew Ferguson, who teaches law at the University of the District of Columbia, explained that Internet of Things (IoT) enabled evidence “presents hard decisions for judges because analog rules do not necessarily make sense in a digital world.”

“In essence, the judge conflated probable cause, that a crime occurred with probable cause, that evidence of that crime will be on the device. This is both understandable, because judges have routinely granted such warrants for homes or cars or computers, but also probably a stretch if you think about what the probable cause standard should be,” Ferguson said.

However, he warned, just because a crime has been committed does not mean that all the smart devices associated with the suspects should be searched because of the possibility of helpful evidence. “I think the judge’s court order fails to understand exactly how Amazon Echos work, and is based on a hope for possible evidence as opposed to a reasonable certainty that incriminating evidence will be found.”

Again, this is my reasonable fear, that the state will use Internet of Things devices to go on fishing expeditions. That judges, most of whom do not really understand how these connected devices work, will okay such expeditions without any real showing of probable cause.

If I have an Echo and I get charged with stabbing a white supremacist, next thing you know some prosecutor will be checking to see if I ever asked Alexa how to carve a jive turkey.

And that (fictional) example brings me to my other main Constitutional concern. The instant ruling was made on Fourth Amendment grounds, but I also worry about the Fifth.

In this case, the Echo was owned by the deceased victim, so there are no real Fifth Amendment concerns (and diminished Fourth Amendment concerns, to be honest). But it doesn’t take much to imagine a case where your own Echo is used against you.

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In such a case, the mainstream legal thought is to treat Echo just like a personal computer. The government is allowed to search your email, for instance, and use those emails against you.

I would like to see Internet of Things devices treated to something like a spousal privilege. (Just go with me for a second; remember in my fantasy world you also have vehicular privacy.) You can tell your spouse, “I want to kill that asshole,” and your spouse can not be compelled to testify against you, even if that asshole later turns up dead.

The spousal privilege extends from the concept of marital privacy, and, more problematically, the concept that a wife had no rights of her own anyway.

Let’s dispense with the barbaric latter justification and focus on the relevant and modern concept of privacy.

The communications we are having with Alexa are private. It might not be self-aware that it’s being used as a helpmate — at least let’s hope she’s not — but it is being sold to us as a robot butler. It’s not like email where we are communicating with a third party. It’s not like a Word doc or a dear diary where we are self-consciously recording our thoughts. We’re talking to it, with all of the ephemeral expectations a conversation implies, within the private walls of our homes. Our right against self-incrimination should attach to it just as surely as our pillow talk cannot be used against us in court.

I doubt prosecutors will agree with me. And I doubt judges, most of whom come from a prosecutorial disposition, will see things my way either.

Which means I doubt I’ll be buying an Echo any time soon. Amazon is fighting the court order in New Hampshire, as well it should. If people realize they’re inviting a government stooge into their homes, it might hurt sales.

Alexa, Tell Me About the Homicide: Judge Orders Amazon to Turn Over Echo Data [Legal Tech News]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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