Volume 54

Alexa and Third Parties’ Reasonable Expectation of Privacy

by Raphael Davidian

 “Last night, I was driving a Lexus and accidentally ran a red light before hitting a young man crossing the street.” If someone says this in a friend’s home, not knowing that Amazon’s Alexa is recording, does this person have a reasonable expectation of privacy? Would law enforcement’s attempts to obtain the statement constitute a search? 

Recently, Amazon agreed to disclose recordings captured on an Amazon Echo device in the home of a murder suspect in Arkansas. Amazon initially refused to hand these recordings to the police, but later obtained permission from the Echo’s owner. The Echo is a small “smart” speaker that responds to voice commands by way of its artificial intelligence assistant named “Alexa.” Users can use the device to run simple web searches, control digital thermostats, or play a variety of media. Voice interactions are recorded on Amazon’s servers and users can view (and delete) the query, Alexa’s response, and even a transcript of the whole exchange. 

Under current Fourth Amendment doctrine, when someone takes a deliberate step to install a microphone in her home with knowledge that her interactive data will be transmitted to a third party, she has no reasonable expectation of privacy. But a more nuanced question arises when someone who is not the device owner is recorded without consent, and the recording is requested without a warrant. This piece will discuss Alexa’s role in a recent murder trial and how the device could have potentially recorded and stored incriminating evidence. The discussion will follow with an inquiry into whether existing state consent laws can be reconciled with the existing third-party doctrine in order to match the privacy expectations of visitors to an Alexa-enhanced home. 

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