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

As 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.

Megan 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.