“In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories.”
In what sounds like it could be a plot twist in a Law & Order episode, the prosecution in a double murder trial in Strafford County, New Hampshire, has called Alexa, Amazon’s voice assistant, to the witness stand.
It’s the latest development in the case of the State of New Hampshire v. Timothy Verrill as a judge ordered Amazon to release recordings made by one victim’s Echo device for a three-day period in 2017 when she was killed, as well as from any cellphones that were paired to it during that time.
Judge Steven Houran said the court found probable cause to believe the recordings “[contain] evidence of crimes committed against [48-year-old Christine Sullivan], including the attack and possible removal of the body from the kitchen.”
When a user speaks to Alexa, a recording of the query is sent to the cloud, where the request is processed and a response is sent. Amazon says Alexa is waiting for a wake word, which it detects by “identifying acoustic patterns that match [it].” So, in theory, if Alexa was somehow activated during the commission of a crime, she could record evidence—kind of like the audio version of DNA under a victim’s fingernails.
Amazon did not respond to a request for comment.
According to his indictment, 36-year-old Verrill faces two counts of first-degree murder, two counts of reckless second-degree murder and five counts of falsifying physical evidence in connection with the murders of Sullivan and 32-year-old Jenna Pellegrini on Jan. 27, 2017.
He pleaded not guilty and faces trial in May 2019.
This is not Alexa’s first brush with the law.
The case is similar to that of James Bates, who was accused of murdering his friend Victor Collins in 2015. The 47-year-old’s body was found in Bates’ hot tub in Bentonville, Arkansas. Detectives reportedly said they learned music had been streamed at the time of death, which might have been controlled by Alexa.
Amazon, however, was reluctant to comply with a warrant for information from Bates’ device. In court documents, the ecommerce platform said, “Given the important First Amendment and privacy implications at stake, the warrant should be quashed unless the Court finds that the State has met its heightened burden for compelled production of such materials.”
Apple took a similar stance in support of user privacy when the FBI asked it to unlock the phone belonging to one of the shooters in the 2015 San Bernadino massacre. However, in Apple’s case, the FBI changed its mind and the security-versus-privacy debate sort of faded away. Amazon, on the other hand, eventually relented when Bates’ defense team agreed to allow police to review the recordings.
Prosecutors had hoped the device would yield evidence about what happened on Nov. 21, 2015, when Bates, Collins and friends drank in a hot tub after watching football. Bates told police he went to bed at 1 a.m. and found Collins’ body the next morning.
Prosecuting Attorney Nathan Smith reportedly said he did not find anything incriminating on the Echo and in reviewing new evidence he concluded there was more than one reasonable explanation for Collins’ death. Charges against Bates—who was represented by attorney Kathleen Zellner, the lawyer at the center of the second season of the Netflix series Making a Murderer—were dropped in November 2017.
These cases are good examples of an unforeseen consequence of voice technology—and demonstrate our laws (and perhaps even our morality) have been significantly outpaced by technology.
Per Joseph Jerome, policy counsel for the non-profit Center for Democracy and Technology, we’ve never before lived with devices that record intimate details about our lives. And there still isn’t a clear process about what should happen if law enforcement wants to use it.
He noted prosecutors have long introduced data as evidence in unique ways, such as using video-game-playing history in child custody hearings. But he said the question we need to ask is what kind of standards and protections we want to have, such as whether law enforcement can access device data with just a subpoena or if they should have a warrant.
For his part, ACLU attorney Brett Kaufman said the proliferation of these devices presents serious threats to First and Fourth Amendment rights and the courts and government should tread carefully when considering access to this new kind of evidence.
“The Constitution rightly treats the home as one of the most sensitive and private spaces people have,” he said. “Devices that record private conversations and network activity, sometimes even inadvertently and without the users’ knowledge, should not be treated as run-of-the-mill repositories of evidence. And the companies that users trust to operate these devices and manage their recordings on corporate servers must carefully scrutinize law enforcement requests for this kind of data to ensure that their users’ rights are not trampled in the government’s effort to exploit a new technology.”
And so we also need to decide what a reasonable expectation of privacy is with connected devices, Jerome said.
“Courts are grappling with older analogies and one-off cases,” he said. “Lawmakers seem a bit behind the eight ball, so to speak.”
As Jerome explained it, most information conveyed to a third party does not have any sort of privacy protection under the Fourth Amendment, which, for example, is how law enforcement can access bank records—a customer gave that information to a bank, so, in turn, the bank can give it to law enforcement. And this, Jerome said, may have made sense in a file-cabinet-and-paper universe, but times they have a-changed.
“The court system is grappling with what types of protection to give what types of data,” he added.
Look at the case of Carpenter v. U.S., which the Supreme Court decided earlier this year. It found the government’s acquisition of cell-site records from Carpenter’s wireless carriers was a Fourth Amendment search and the government did not obtain a warrant before acquiring those records. As a result, the Supreme Court reversed an earlier decision.
Jerome said this is because cellphone users do not voluntarily give geolocation information to wireless carriers—they have to provide location to use the device.
But even though the Supreme Court has recognized location data is sensitive, there is no universal understanding of what other data gets protection and for how long—and there’s a heck of a lot of data out there, he added.