This post, written by Jeremy Meisinger, was originally published on the firm’s Security, Privacy, and the Law blog.
For internet-of-things watchers, some information to chew on: several news outlets have reported on a dispute between Amazon and law enforcement investigators in Bentonville, Arkansas. Arkansas police are investigating an apparent homicide that took place in November 2015, and have charged one suspect with murder. Searching the house where the crime took place, investigators uncovered an Amazon Echo device, a personal digital assistant that can be activated by voice commands.
The Echo, like many voice-activated devices, does not constantly record sound, but is constantly on alert to hear a “wake” word (the default is “Alexa”), which will cause the device to start recording. Audio recorded once the Echo is “awake” is streamed to cloud storage, where it may be deleted by the device’s owner. Inevitably, devices like these sometimes start recording by mistake, such as when someone says a “wake” word (or something that sounds like a “wake” word) without the intention of waking the device.
Investigators have served a search warrant on Amazon for data from its servers on anything the Echo might have recorded on the days preceding the murder. Amazon has so far resisted full compliance with the warrant, citing concerns over sharing customer data.
These same investigators are getting smart about the possible evidentiary gold present in other devices too, seeking information related to a smart water meter to support a theory about water used to clean up the crime scene. (As we have written previously, smart utility meters are on the FTC’s radar as potential treasure troves of private data.)
Though not for lack of trying, the technology of internet-enabled devices is moving faster than the FTC can write interpretive guidance to clarify privacy concerns. The FTC is moving rapidly at the same time to address security concerns, announcing in early January that it would offer a $25,000 prize to create an innovative tool to reduce security vulnerabilities in smart devices that are not patched to have the latest security.
The Bentonville case illustrates just a few of the challenges that traditional privacy law will face. Courts will have to make difficult choices about what requests from law enforcement are reasonable, even as the traditional concept of “reasonable expectation of privacy” is upended daily by inviting smart devices to observe (and sometimes record) more and more portions of our lives.