We live in an age when increasing numbers of people rely on devices to turn off their lights, make a phone call, or set the morning alarm. This may explain why since its launch in 2015, Alexa—or what Amazon bills as a “virtual assistant” —has become a virtual extension of the lives of its estimated eight-million-plus owners.
This codependency however comes with its own set of risks, according to a research paper published in the Southern University Law Review.
The paper by Tara Melancon, a third-year law student at Southern University Law Center in Baton Rouge, LA., entitled, “Alexa, Pick An Amendment”: A Comparison of Fourth and First Amendment Protections of Echo Device Data,” asks whether Alexa owners are protected under the First and Fourth Amendments when their privacy rights are infringed upon.
Melancon writes that American society has been preoccupied with privacy rights since at least the late 19th century, when The Right to Privacy, a law review article from 1890, broached the perennially relevant subject of the need for “privacy laws to keep up with technological progress.”
The issue has become increasingly relevant.
The reason, as Melancon explains, is not only because Alexa might be used to collect evidence against owners entangled in the criminal justice system; but because recent technological advances, notably our smart phones—which track our every move and purchase—have made us vulnerable and possible targets for investigation.
As Melancon argues, if cell phones and other devices have triggered privacy concerns, then so should Amazon’s Alexa, which has a “greater variety of data, […] immense storage capacity, […] and the ability to store information for many years.”
However, protections aren’t always guaranteed, since technical loopholes such as the Third Party Doctrine—which posits that privacy isn’t upheld when data is shared with a third party, which in Alexa’s case would mean Amazon—challenge the upholding of privacy rights under the Fourth Amendment.
The Third Party Doctrine is just one possible infringement on Fourth Amendment privacy rights. “Exigent circumstances”—criminal procedure circumstances that may require immediate access and swift actions from a “reasonable person” to avoid imminent danger or destruction—represent another.
For these reasons, Melancon believes that the key to protecting the privacy of Alexa owners will be through the First Amendment rather than the Fourth since standards such as strict scrutiny—in which courts weigh a constitutional right against the government’s interest in possibly not observing those rights— are difficult for law enforcement to bypass, since “to show a compelling interest, the government must show that there are no other reasonable alternative means of satisfying the asserted need.”
Melancon cites a 2015 murder case in Bentonville, Ark., where the local police department issued Amazon a warrant to “search and seize all audio recordings and text records between a murder suspect’s Alexa device and Amazon’s server during the 48 hour period in which the murder took place.”
Amazon refused on the grounds that this request was a First Amendment violation of its customers. However, Amazon’s policy towards its customers’ First Amendments rights is still not fully clear, as the suspect eventually gave authorities permission to access data from his Alexa device in an attempt to secure his innocence.
As Amazon actively looks for new ways to expand Alexa’s functions, the risks for privacy violations increase exponentially as well.
According to Melancon, Amazon has “created a $100 million fund last year to invest in companies that will push the boundaries of voice-based interaction, and has invested in twenty-two startups as part of the Alexa Fund, mostly focused on smart home and wearable products.”
Melancon concludes that as technology advances have stretched the limits and our understanding of privacy boundaries, “the law’s privacy protection” has adapted in order to “accommodate the increasingly sophisticated “modern devices” referred to in the 1890 article, Right to Privacy.”
Ultimately, while First Amendment rights stand a better chance of securing Alexa owners their privacy rights, this does not mean that Amazon should ignore the Fourth Amendment.
She suggests that “to better protect Alexa data,” Amazon and other cloud-based storage companies consider themselves “information fiduciaries,” which would give them standing to challenge a violation of Alexa users’ Fourth Amendment privacy rights.”
The full paper can be downloaded here.
Julia Pagnamenta is a TCR news intern. She welcomes comments from readers.