“Hey Alexa…Are you Discoverable Evidence?”

February 27, 2017

Alexa, the friendly personal assistant voice of the Amazon Echo and Dot devices, can do  everything from streaming music and news updates to ordering pizza.  Alexa also has the ability to answer questions when asked, but one question Alexa may not be able to answer just yet is, “Hey Alexa…Are you Discoverable Evidence?”

The development of technology like the Amazon Echo and Dot raises a very important question in the E-Discovery field about whether these devices’ data records are discoverable in civil or criminal cases.  Recently, for example, this issue has been directly involved in a national news story focusing on police in Arkansas obtaining a search warrant for an Amazon Echo in a murder case. [1] In this case, Benton County Prosecutors and Arkansas police believe that the voice-activated Echo may be able to provide some information on how a man came to be found dead in the hot tub of 31-year-old James Bates.

The Amazon Echo and other voice-activated assistants, such as Google Home and Apple’s Siri, provide information when people use a “wake word” to activate the device.[2]  While these devices don’t necessarily record conversations, they do create a record on their servers of everything users ask, as well as the answers the devices provide.  In the Bates Case, Arkansas police think that, on the night of the murder, someone in the home may have activated the Amazon Echo inadvertently, and, if so, that data may help solve the crime.

On February 17, 2017, in a new filing in the Bates case, Amazon filed a Motion to Quash the Search Warrant for the Amazon Echo data citing First Amendment protections of free speech.[3]  The Motion to Quash states that “Amazon does not seek to obstruct any lawful investigation, but rather seeks to protect the privacy rights of its customers when the government is seeking their data from Amazon, especially when that data may include expressive content protected by the First Amendment.” Id. In the Motion, Amazon argued that the courts have observed, “[t]he fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights.”  Amazon.com LLC v. Lay, 758 F. Supp 2d 1154 (W.D. Wash. 2010).  Id.

While it’s not entirely clear whether Amazon will have to produce any data in the Bates case, it turns out that the Amazon Echo wasn’t the only smart device in the house.  Police also discovered that the Defendant’s home was equipped with a smart water meter that recorded 140 gallons of water being used between the hours of 1 and 3 a.m. on the night of the incident. Police believe that the information found on that device shows that the Defendant may have hosed down his patio and hot tub in order to hide evidence.

It is important to consult with your attorneys when determining any E-Discovery issues you may have. SMGG can help ensure that you’re compliant in any E-Discovery matter and that you are properly storing and preserving all electronically stored information.

If you have a question about what to do with E-Discovery or electronically stored information, please contact Jordan P. Shuber of Strassburger McKenna Gutnick & Gefsky at jshuber@smgglaw.com or (412) 281-5423.

[1] http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/

[2] http://fortune.com/2016/12/27/amazon-echo-murder/

[3] https://www.scribd.com/document/340118806/Amazon-Alexa-Free-Speech