Alexa, tell me about the 4th Amendment...

Siri, Google Assistant, Alexa… these are just a few of the digital personal assistants that are increasingly being integrated into our daily lives through our ever increasing internet connected personal devices, homes, and vehicles. Alexa, in particular, is the personification of Amazon’s AI/digital assistant embedded within its Amazon Fire tablets, Fire TV, Echo, Tap, and Dot, this last being one of the hottest sellers during the recent holiday season. Once connected to the internet, one merely speaks her name, and Alexa will come to life ready to answer your questions and perform tasks. In order to do so, Alexa is always listening, waiting to hear the magic wake word calling her into action.

It is this constant passive listening that has recently drawn the interest of law enforcement. In late November of last year, Victor Collins was murdered at home in Bentonville, Arkansas. The homeowner and primary suspect, James Bates, was an aficionado of such “internet of things” devices, and had several “smart” devices throughout his home, including an Amazon Echo. Police wanted to know what, if anything, Alexa might have heard on the night of the murder, and subpoenaed Amazon for the related recordings.

While clearly a “hot lead,” ultimately, the police may not get much information. Although Alexa enabled devices are constantly listening, it’s purportedly not until they hear the wake word, i.e., “Alexa” that they begin to record audio/data and send it to Amazon servers for processing. Nonetheless, it’s clear that aggressive law enforcement officers will increasingly seek this type of “evidence” as it becomes more and more readily available. As this becomes the norm, questions will arise as to just how much of our right to privacy we are waiving by installing these types of devices in our homes; how easily accessible it should be for law enforcement; and how compliant/cooperative should manufacturers be in terms of providing source codes and account access when the owner/target will not. The potential for a very slippery slope lies ahead.

Nonetheless, as these technologies continue to be rapidly developed and adopted, it’s clear they aren’t going away and will be the subject of further use and/or scrutiny in the courts. However, as with most evidence in criminal cases, such data always has the opportunity to cut both ways. In a case last year, a client of mine presented me with logs from his home’s smart locks to corroborate his entry and exit times from his home. As this data-driven evidence becomes more common, it will be up to experienced criminal defense attorneys like me to object to, and/or move to suppress, its introduction whenever valid grounds arise, and/or determine how to mitigate or use it to my clients’ benefit when it is introduced.

As the world we live in becomes more and more interconnected, it feels as though our privacy rights have proportionally diminished - almost to the point where not even our homes and personal spaces can avoid prying eyes and ears. The Fourth Amendment, however, stands as an ever vigilant bulwark against this invasion. As a criminal defense attorney, it is always my goal to not only ensure my clients receive the full and complete protection of the Constitution but to keep one step ahead of the technological “fads” of the day in order to prevent anyone I represent from being hurt by them.

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