In a sign of how internet-connected devices could transform the legal system, a prosecutor in Arkansas is fighting to collect evidence from an Amazon Echo, which could hold sound recordings that reveal details about who committed a murder.
The Echo, also known as ‘Alexa’ is a cylindrical, 9-inch high speaker sold by Amazon that connects to the internet and that users place in their home. It listens and responds to voice commands, similar to Apple’s ‘Siri,’ and can search the internet, play music, tell jokes and perform other voice-activated tasks.
The device is controversial to privacy advocates because it has a continuous listening loop, and when the wake word is spoken — Alexa — it transmits a recording of any sounds, including ambient background noise from just before and after the wake word to the Amazon cloud. As a result, there are now listening devices inside people’s homes, constantly capturing snippets of people’s daily lives.
[caption id="attachment_38946" align="alignleft” width="225"][Image “An Amazon Echo device. Photographer: Luke MacGregor/Bloomberg” (src=https://bol.bna.com/wp-content/uploads/2017/01/303782941_1-5-e1483555537833.jpg)]An Amazon Echo device. Photographer: Luke MacGregor/Bloomberg[/caption]
In the Arkansas case, Victor Collins was found strangled, floating face-up in James Andrew Bates’ hot tub in Bentonville in November 2015, according to news reports . Bates was charged with murdering Collins, but maintains his innocence.
Prosecutors have requested access to all “audio recordings, transcribed records, text records and other data” from Bates’ Echo from the two-day period during which Collins is believed to have been killed.
In August, an Arkansas state judge signed a search warrant for the Echo, which police seized, but most of the data from an Echo would be stored in Amazon’s cloud. The warrant passed unnoticed until last week when the technology news site, The Information, reported on it as one of, if not the first time, an Echo has been seized in a criminal investigation.
So far, Amazon has said it objects to “overbroad or otherwise inappropriate demands as a matter of course” and prosecutors were in negotiations with the company to obtain the information, according to news reports. Neither the prosecutor on the case nor Amazon responded by press time.
Kimberly Weber, an attorney for Bates, said her client has pleaded not guilty and is not afraid of what the Alexa could reveal about his whereabouts.
Nonetheless, the broader question of whether an Echo or similar device is subject to civil discovery or a warrant in a criminal case has been a matter of frequent discussion on legal tech blogs and at conferences.
Craig Ball, who teaches discovery law at University of Texas at Austin Law School and is a certified computer forensics examiner who has worked on large cases such as the Enron civil shareholder litigation, has been writing about the implications of technology such as Alexa on his blog, Ball In Your Court.
“The Arkansas police have gotten some grief at seizing the Alexa under the idea that it’s a violation of privacy,” Ball told Big Law Business."But there’s no right to privacy.”
He added: “Amazon’s not your lawyer, not your doctor, not your spouse, not your priest, so the usual protections for highly confidential information are not there. This is information you shared with a commercial vendor in exchange for certain conveniences.”
Big Law Business spoke with Ball about how the Alexa could be used in the murder case, the technology itself and how it’s changing the discovery process. Below is a lightly edited transcript.
Big Law Business: So how does an Echo help solve crimes?
Ball: I can conceive of a situation where somebody was playing music through Alexa and a heated argument develops. Somebody wants to turn it off and says ‘Alexa shut up’! In which case, you might record before and after, you could hear the tone and agitation of the voice. It’s certainly giving you timing [of when and where someone is].
Here, the question of who was on the premises and at what times are key questions for law enforcement.
Big Law Business: What might the Echo tell us in the Arkansas murder case?
Ball: First of all, we have to figure out what the data from the Echo is. The potential for that data to be stored in Amazon’s support cloud is high. In the case of the investigation, it will help to identify who was alive and giving commands to Alexa. If a command was given by someone who claims to have left the house, that would be probative.
Big Law Business: To back up a little then, how does the Echo actually work?
Ball: Internally, on the Echo, there is a loop of sound that’s stored as RAM (Random Access Memory), and it’s constantly recording a very short loop internally, and it’s constantly analyzing that loop for the wake word, Alexa. The sounds slightly before and until the conclusion of that command will be recorded as audio, transmitted to Amazon, and stored. It’s stored until you delete it. I’m not sure if there’s an upper limit on how much can be stored. I have well over a year’s worth now [in my personal account]. You hear conversation going on at the same time, television in the background, etc.
Big Law Business: Is an Echo’s data available for lawyers to subpoena?
Ball: With proper procedure, it would be available in criminal and civil cases. It’s not necessarily. It’s in the cloud, so the question is what form does it take? It’s easy for the user to see it and to destroy it, and it’s challenging for law enforcement and forensics experts like me to collect it. It’s a question of how we’ll collect it, and authenticate it, prove it [is who we think it is speaking to Alexa]. You’ll [also] have to record it on an alternate device unless the people at Amazon cooperate.
The key is to look for it in the right place. Seizing the Alexa is not going to do what you want to do. Most of the information is not local to the device. Grabbing the device will tell you very little. It’s all about grabbing the data from the [Amazon cloud].
It’s also about protecting it from destruction. Right now the only people who can destroy it are the users. That’s pretty revealing, too. If someone accused of a crime, goes back and destroys all of their messages on the night of the crime...
Big Law Business: So it’s stored in the cloud that Amazon controls?
Ball: You have to get Amazon to cooperate. They have protections: the Stored Communications Act may protect them from having to release it. It may not be as easy as police saying we want it and Amazon having to give it to them. There has to be due process. And it may not be that Amazon is being uncooperative. It may be there are costs associated with it... as well as the needs of their customer base [and privacy expectations].
Big Law Business: Does Amazon keep a back up copy?
Ball: I don’t think we have a clear picture of that issue. Unquestionably, they have some level of redundancy to be able to protect data in the event of a disaster. What the parameters of that are, I don’t think we know yet. It could be that the government will compel companies like Amazon to preserve it ... we’ll just have to wait and see.
Big Law Business: Is this the tip of the iceberg, and soon lawyers will subpoena Alexa all the time to obtain evidence to prove cases?
Ball: This isn’t even the tip of the iceberg. This is the chips before you get to the iceberg. This is part of an emerging ecosystem. Sensors are embedded in almost anything and collecting data streams constantly. I have them in the lights in my homes, my door locks, cameras that film things. When I buy a product, order a pizza, have a whim for pizza, ask what time it is — all of these things leave an electronic trail behind that fixes me in location and time. It’s very valuable and highly probative and reliable in many instances. It just takes time for the law to catch up.
Big Law Business: Is this new information being used in certain types of cases already?
Ball: It’s used extensively in divorces from the standpoint of forensices conducted on local machines, phones and social networking.
Social networking has been used increasingly in personal injury and domestic cases. Oftentimes, you’ll see people lose their cases based on what they posted on Facebook ... or based on their ill-advised ideas to destroy information posted on Facebook to shield it from discovery.
Big Law Business: Could Alexa reshape the legal system?
Ball: Alexa could reshape the legal system, sure, to the extent we have the emergence of closely held continuous recordings. Consider police officers, think of how they have dash cams on the cruisers. Think of how often you’ve seen dash cam footage. Now, we have body cams.
We’re going to see that type of thing increasingly in personal jewelry. Right now, unlike ten years ago, almost every person out there is carrying a device capable of high definition audio and video recording. And anytime something serious happens, they whip it out and start recording. And we have more devices capable of recording in our possession all the time.
In my home, there are cameras recording everything and storing it in the web for 30 days. That’s becoming ubiquitous. We have cameras at every traffic intersection. We are continuously being geo-tracked by our phones. The notion that we’re going to know a lot more about people and where they were and who they were with is going to be ubiquitous.
We’re going to have a huge amount of information coming online from machine-driven vehicles. In order to work, those machines have to collect a tremendous amount of real world data. It’ll be stored, it’ll have to be stored [for liability purposes in case of an accident, say].
Big Law Business: Will there be a key case that accelerates its adoption by lawyers?
Ball: I was involved in Enron. I was the plaintiff lawyer’s lead forensic investigator. I’m a Texas lawyer, a certified forensic examiner. If we look historically, emails became important starting with Enron. In the LIBOR cases, you see texting between traders that shows such a high level of arrogance. There, we woke to the risks of texts. More recently, the Apple dispute with law enforcement authorities over the San Bernandino terrorist attack showed the importance of a smartphone. These front page stories begin to bring the issues forward. Once one lawyer does [something] successfully, everybody else wants to leap on board.
It’s here now. I hate to steal such a cliched line. But you know, ‘the future is here now, it’s just unevenly distributed.’ The science fiction author William Gibson said that and it’s true. I’m already requesting these things all the time. As lawyers become more adept at the language of its demand, the language of its preservation, at being able to articulate to judges the value of the information, it’s going to happen more routinely.
Big Law Business: What are you routinely requesting?
Ball: For under $20 you can purchase a plastic door hook, and it looks like a hook to hang your clothes on, but these are full-motion recorders. And I’m working on a case now where someone put it in another person’s room to film that person without their clothes on. We’ve seen cases where people put these in changing rooms at the beach. That’s a cheap item, it’s like three cups of Starbucks. Anyone can afford to buy something like that on the web. Privacy is not what it used to be. We should be using this to protect ourselves. Electronic information is as likely to exonerate as it is to implacate. It’s not bad. It’s just much more precise than what we’ve had in the past.
Big Law Business: Is there a scenario in which this technology never takes off?
Ball: There could be a ‘great internet blackout’ — a malware infestation that so disrupted these devices that we viewed their output with suspicion. I anticipate the ‘great internet black out’ could be a cyber attack that is or is not sponsored, but that is so invasive that we see major infrastructure disrupted. I see that coming within the next 12 to 18 months. I hope I’m wrong, but we see the signs and the fundamental weaknesses are there.
UPDATED: An earlier version of this story misstated the name of Ball’s blog. It is Ball In Your Court.
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