“Work Hard, Have Fun, Make History”: Amazon’s Alexa Ordering Up Constitutional And Civil Controversies

1483463815435As a torts professor, I admit to ranking new products by their likely litigious profiles. Amazon’s Alexa is a particular favorite. First there are the privacy concerns over the security of data on the devices. Then there was the constitutional criminal procedure concerns in a murder case in Arkansas. Alexa is an example of new technology potentially outstripping existing legal doctrines. The company is certainly making good on its final pledge of its slogan: “Work hard, have fun, make history”

Alexa could become part of a ubiquitous technology that will become the vehicle for citizens to communicate to the outside world — revealing tastes as well as secrets. There has long been a race between privacy and technology with the need of the courts to periodically address new technological threats to privacy. This was the case with the Supreme Court’s eventual rejection in Katz v. United States, 389 U.S. 347, of the “trespass doctrine” when technology developed that avoided physical trespass — leaving citizens vulnerable to warrantless surveillance. Echo Dot is only the most recent manifestation of this tension. Citizens voluntarily communicate with the devices but they are located in their homes, which are generally afforded the greatest protection under the Fourth Amendment.

The Arkansas case involves a search warrant for data from an Amazon Echo owned by James Bates, who is accused of strangling and drowning a man in his home. Bates is facing a trial for first-degree murder after Victor Collins was found dead in Bates’ hot tub after a night of drinking. Prosecutors want to retrieve information from the device including any “hot words” registered during the period. The prosecutors did seek a warrant but the question is whether the device could be treated like a pen register or unprotected technology — evading the requirement of the warrant clause. There is also the question of information being vulnerable to hacks or being deposited or transmitted to companies. The technology is so novel for most citizens that the implications are not fully hashed out.

Then there is the interaction with anyone giving voice commands. Nothing like a machine that can order things by voice command. The result in Dallas Texas was a particularly delight for a six-year-old girl.

amazon_echoMegan Neitzel recently received the Echo Dot as a holiday gift from her in-laws only to have a large dollhouse and four pounds of cookies arrive at the house. Her daughter was asking her new electronic friend about the items, but her questions were taken as commands and the products purchased. Megan said that she heard her children sharing knock knock jokes with the Echo Dot but missed the part about the cookies and $170 dollhouse.

Then there was the recent cases of Alexa responding to a toddler’s request for a special song with a discussion of pornography:

On the more serious side, these devices are presenting challenges under existing doctrines over both criminal and civil liability. A bit more legal history may have to be made before we fully understand the implications of Amazon’s personal assistant.

24 thoughts on ““Work Hard, Have Fun, Make History”: Amazon’s Alexa Ordering Up Constitutional And Civil Controversies”

  1. Really interesting article! I’m currently in law school and we have just added a class about privacy and technology. It’s crazy how tech and the law can intertwine. I recently started a blog about my law school experience check it out if you have a chance.

  2. 1. Live in a remote rural area? Check.
    2. Central Office too far to use phone lines for DSL? Double Check.
    3. CableTV never pulled; no hi-speed ISP available? Triple Check.
    4. Use ‘Satellite’ internet? Latency too long? Check and Check Mate.

    Seems Alexa won’t work at my home. No privacy worries here.

    It pays to be poor …

  3. There is no doubt that technology is a couple of steps ahead of the law. The problem is compounded by the fact that we have an entire generation of people who are happy to share every trivial moment in their lives with strangers and lack any sense of the importance of protecting the right to privacy. There will be much litigation over these issues in the coming years.

    But there is another interesting twist of technology in this case. A report earlier today on NPR noted that the Bates residence is equipped with a smart water meter. As opposed to the traditional meter which merely maintains a running record of gallons used, a smart meter apparently records the dates and times of water usage. In this case the state has acquired data from the water company showing that Mr. Bates, or someone else in his household, used 150 gallons of water between 1:00 and 3:00 a.m. on the night of the murder. Police believe that the murderer was using the water to clean up the crime scene. Does a homeowner have an arguable expectation of privacy with respect to this sort of record? I doubt it.

      1. Darren – one of the points that the court found ‘legal’ was employees narcing to the police. Personally, I would like to think that my use of public utilities is private (since I am paying for them) and no else’s business but mine.

        1. I had to disagree with the court in the same manner for which you speak of privacy concerns. It is one thing for a police agency to ask the public to be on the lookout for crime and to report suspicious circumstances, and it is another to develop a working relationship with a utility and provide them with methodologies to act as a surveillance agent of the state. Moreover, in many communities in our state the power generation entities are municipal corporations, having both taxing and regulatory power. So in my view they constitute a state actor for the purpose of search and seizure laws. But in this case, the Court ruled that it was an individual employee acting upon his on behest.

          Then there are incidences such as inferred agency, as I will label it, where there is no official relationship between the police and an entity that is covered by privacy rules but a de facto relationship does. An example of this is where a hospital emergency room is prohibited from calling law enforcement and break HIPAA laws (except in cases such as rape or gunshot wounds) but has an open communication line with law enforcement. An example is where police working night shifts have only the nursing station at the hospital E/R for a cup of coffee after three in the morning but when someone “interesting” comes by the E/R a telephone call is made from the hospital to the sergeant’s cell phone inviting him to “come by and have a cup of coffee.” And guess what? A person with a felony warrant just happened to check himself into hospital for a twisted ankle and by coincidence the police needed a refill on their thermos and arrested him.

  4. My generation unleashed the concept of selfish is good and that quickly led to the reality of corruption is better. Not that the concept and the reality hadn’t been present before, but suddenly it took on a whole new scale. Science and technology were put at its service and its attendant reality ballooned. A giant lever magnifying the potential of that selfishness and corruption by orders of magnitude in every device, every invention, every technology, every business school graduate, every aspect of every social construct. Until it collapses of it own weight when the levers of power undermine and poison even the Constitution and rule of law, giving themselves and their own masters of business and finance ever greater powers and wealth until the balance is simply impossible to maintain.

    And here we are; not quite there yet, but the contours of disaster are becoming visible to more and more people.

    Consumers are now a class of people like cattle. When George Bush II was asked, after 9/11, what people could do to contribute to the war on terror, he replied, “Go shopping.” At least back then, we still had the choice not to go.

    Over time we have become more like herds of victims where so much is extracted from us every month than anything resembling individuals tending to their needs and wants. The very notion of a finite world with limited resources is lost in this mad race for total control by the few, and again we end up the victims being spoon fed appropriate ideologies to accommodate the madness as if the impossible acceleration and the obvious train wreck at its conclusion were just what we had always wanted.

  5. So, if you say “I wish so-and-so were dead,” and your robot assistant hears it, what can go wrong?

    “Monsters John — Monsters from the Id!” (ref Forbidden Planet)

    1. Your example is quite good, even if it will probably be handled at least at the upper most level (principle one: don’t harm humans).

      It raises a range of issues regarding interaction between human and machine, particularly when you shift to slightly more subtle scenarios which can easily lead to much the same result.

      Professor Turley raises an excellent point when he points out that technology can outstrip judicial experience and thus ability to deal with such situations.

      Part of the really troubling aspect is the huge clout the technology innovators. We see this particularly in the moves such organizations as Google and Uber are making to shift legal responsibility from manufacturer of AI components in automated cars on to the human user – all such dreary detail supposedly excused by a statistic on safety and reduction of accidents that Google and the industry have projected onto automation as if it were a reality.

      Humans are going to end up with these devices whether they are in agreement or not due to the immense clout of these companies and the general level of corruption we have arrived at throughout every last one of our institutions.

  6. Well KCF, Trump and Bezos hate each other so there might be some consequences coming. Most likely on antitrust issues.

  7. For me, the convenience of Amazon’s Alexa is outweighed by the threat.
    The opportunity for misuse is far too large.

    We need a kind of HIPAA privacy legislation aimed at these consumer technologies and the companies that operate them.

  8. Actually, I have an Echo Dot and I think it should be treated as communication between husband and wife. I think computers should be treated that way, too. They should ask Alexia if she wants to testify.

  9. There is a lot of mush in the article. Alexa who? Is she a choice and not an echo? Why the kid photo? So, there is some criminal case and the cops, prosecutors et al want to open up a : what?
    Privacy? Phone is in a home. Yeah. You have privacy when your phone is in your car, your boat, your pocket. Cops can pick pockets illegally. What we need in this brave new world is a phone which doubles as an arse wiper. That way the cops have to put up with a lot of crap if they want to read our emails.

  10. I use Amazon a lot but I have to say their on line catalog if terrible. Ask for something you most often get anything but what you ask for. No Matter how precise the description. Necessary information for a buying decision is most often NOT present. They make no attempt to improve the situation. But they bend over backward when there is a problem with shipping, Items that don’t work etc. Unlike many others. Also it’s very hard to find the little button for sending a real message instead of some damn preselected computer list that rarely has anything to do with anything and the Engish/Spanish/French etc button is hard to find if available at all.

  11. The claim of at least one of these providers is that it only sends a minimal amount to their servers preceding the activation command and the close command. It is only a matter of changing a few bits after making some obscure entry into the privacy notice and the company will listen to everything possible. For a few table scraps of facts such as the height of Mt. Rainier or to play a favorite song, you have everyone using everything you say or do to their own designs and not necessarily in your own best interest.

    Have we become so lazy as a society that going to a computer screen or a telephone is now too much to ask?

    There was a time when the public actually pushed back against intrusions such as this. The clipper chip debacle resulted in such outrage, that manufacturers fought this off passionately and the public certainly would not buy any computer system having one. Now, many if not most people under 30 have no concept of the importance of privacy and throw it away for the most trivial of reward.

    This is completely, and totally absurd of a product to introduce into one’s home. But I recognize millions of people have their head buried in the sand when it comes to personal privacy. But, its not just these fools, it is everyone else that is at risk.

    An expected situation is where a person lives off grid, is a privacy zealot, and has no technology in their possession able to exploit them. But, they neighbor is Mr. Gadget who buys all of this nonsense. Gadget states to his wife that Zealot “sawed logs off his 1 ton pickup” and a week later, Zealot gets raided by the police for possessing a “sawed-off shotgun.” in his pickup.

    Everything people say in front of these devices can be aggregated to show patterns of a society and every relationship they have.

    On a political front, history has shown with numerous examples of how neighbors can be used to rat out undesirables, whether willingly or not. Our own government here in the US has attacked political opponents, citizens that is, for being of the wrong alignment, sending the IRS after them and demanding lawful organizations be shut down because they disagreed with the government’s stance.

    The Stasi could never have imagined such a wonderful tool that could be found in a device such as these. THink it is not possible? Well, you can thank Edward Snowden for showing just how likely our own government will use technology against us.

    It has now gone beyond free email services do when they spy on everything you type in. In that case it was mainly limited to what you typed in. Now, it is everything you do and say in your own homes.

  12. The noose grows tighter:
    By James Corbett

    Rick Falkvinge, founder of the original pirate party and head of privacy at PrivateInternetAccess.com, joins us to discuss his recent article, “Today, the FBI becomes the enemy of every computer user and every IT security professional worldwide.” We dissect the new “Rule 41” that gives American law enforcement unprecedented leeway to break into any computer in the world, the implications this has for a world in which privacy is increasingly a thing of the past, and what people can do to protect themselves from the New Online Order of global FBI operations.

  13. Huh?
    Knock, knock.
    Who’s there?
    Amazon who?
    Amazon Echo.
    I want a choice not an echo.
    Then you should have voted for Barry and not Trump.

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