Are Smart Devices Always Listening?

After a man was found murdered in a hot tub, Arkansas police are asking for access to the electronic data records of a smart device located in the hot tub owner’s home. After Victor Collins was found strangled to death in James Andrew Bates’ hot tub, Arkansas police have asked Amazon to provide them with the electronic data captured from Bates’ Amazon Echo device. Although the smart device is not always recording, law enforcement is banking on the fact that the device is “always listening” as it must do so in order to recognize its wake word (“Alexa”) by default.

Amazon disputes law enforcement’s claims, however, arguing that the Echo stores less than sixty seconds of recorded sound in its storage cache at any time, and as such, any information captured by the Echo would likely be insignificant. Amazon argues that compliance with such a carte blanche request would give law enforcement unnecessary access to consumer data and information. Moreover, Amazon points out that, in order to process new commands, the Echo smart device must constantly erase and overwrite old data in order to optimize storage and data capacity. Specifically, Amazon notes that the Echo only records and sends a small amount of electronic data to the cloud. That data, which is recorded upon utterance of the wake word, is then converted into text that the Amazon Echo software can recognize and can act upon. Although Amazon does save these audio commands by default, users are also given the option to manually erase recordings and can even opt out by turning off the Echo’s microphones so that it is not “always listening.”

Despite this, the Arkansas Bentonville Police Department has requested “electronic data in the form of audio recordings, transcribed records or other text records related to communications and transactions between an Amazon device” at Bates residence and from Amazon’s services for the dates between November 21st to November 22nd.

While Amazon has agreed to provide the police department with Bates’ purchase history, they stated that they would not release any of its customer information without valid and binding legal demands. Even without Amazon’s cooperation, however, the police have proceeded to confiscate Bates’ Amazon Echo in an attempt to extract information from it, and it is currently unclear what information they have been able to procure by their own means.

Privacy advocates and Bates’ lawyer alike have already raised concerns about the police seizure and demands concerning the smart device, citing similarities to “a police state.” Privacy groups such as the Voice Privacy Industry Group note that smart devices such as the Echo should not be described as “always listening” and that law enforcement’s attempts to use smart devices against their owners are misguided. Moreover, these privacy groups warn that with the further introduction of the Internet of Things, such seizure and use of smart devices in criminal investigations should be deterred. These advocates instead argue that the government must set “clear legal standards” and likewise require that manufacturers “adopt techniques for data minimization and data deletion” because smart devices that consistently retain data are no longer simply targets for criminal hackers, but may now become targets for law enforcement as well.

For more information on this topic, please visit our Data Privacy service page, which is part of our Technology & Data.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the technology & data law firm and its technology & data attorneys may be found at www.klemchuk.com.

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