Editor's Comment: Echoes of the Future - By Sarah Roland

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Wednesday, January 25th, 2017

The holidays are over. All has returned to normal. Almost. There is a new presence and a new voice in the heart of many homes. An instantly recognizable, mundanely pleasant voice that responds to anything and seemingly knows everything. A voice that is always listening. Alexa.

Indeed, Alexa’s presence inside our homes is growing: Many of us may have given, or received, the Echo or Echo Dot (the physical embodiment of Alexa) this Christmas, and Amazon lists the Echo as one of the best-selling products of the holiday season.

The Echo Dot is, like many devices before it, a voice-recognition device that is designed to answer basic questions, play music, manage calendars, and more. Like other voice-recognition technology (think Siri), it uses a trigger word—“Alexa”—to “wake” the device and to execute commands (e.g., “Alexa, play Bob Dylan’s ‘Masters of War’”). Thus, the Echo is a smart speaker, and is always “listening” for the trigger word, but not—Amazon would assure us—recording the everyday sounds of our home. Instead, the Echo records and briefly stores only the audio that immediately precedes and follows the trigger “Alexa.” There is a buffering period that is recorded prior to the trigger word so that the device can respond promptly. Amazon suggests the Echo device itself can only store about 45 seconds of audio, such that audio recordings on the Echo are constantly being erased to make room for the most recent command. Whether the goldmine of consumer data—what you make for dinner, listen to, purchase from Amazon, and are interested enough to ask questions about—is truly erased versus uploaded and stored for all time on cloud-based storage is a matter for debate. Would Amazon destroy such potentially profitable data?

Predictably, this unfettered access into American homes has interested the police. Indeed, we have already begun to see this play out in the media. A recent CNN headline read “Alexa, can you help me with this murder case?” The headline refers to an Arkansas prosecutor’s demand for information from a suspect’s Echo device. Like Apple resisting the government’s request to crack the code of the cell phone of the suspect in the San Bernardino shooting, Amazon is pushing back.

As the statement from Amazon reads: “Amazon will not release customer information without a valid and binding legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.” Whether that was a statement made to sell more product or a statement made because of belief can certainly be debated.

Whatever the motivation behind Amazon’s statement, it is absolutely correct from a constitutional perspective: With all search warrants we should continue to be ever vigilant about particularity and overbreadth. The Fourth Amendment requires not just that searches be based on probable cause and be reasonable, but also that “no Warrants shall issue” unless “particularly describing the place to be searched, and the persons or things to be seized.” This, of course, is the particularity requirement designed to protect against general warrants. The application of the particularity requirement is perhaps more concrete when discussing a search of a physical place versus a search in the cyber world. However, it applies nonetheless. For a great, current read on this issue, see The Post Riley Search Warrant: Search Protocols and Particularity in Cell Phone Cases, by Adam Gershowitz. College of William and Mary Law School (2016). Faculty Publications. Paper 1820.

Therefore, the police must show that the Echo contains evidence of the alleged offense. Simply because an accused may have an Echo doesn’t automatically imply that the Echo will produce evidence of the alleged offense—and without know­ledge of the recording and storage capability of the Echo, who could say? Amazon likely could, but it appears to be tight-lipped. As an additional matter (and as noted above), it is presently unknown what data Amazon may, or may not, actually have from the suspect’s Echo a day, week, month, or year removed, if any data at all.

Just a few things to ponder as we all get back to normal . . .

Happy 2017.