Alexa, Don’t Snitch on Me
July 23rd, 2018 by McNeely | Stephenson
First there were PCs, then came laptops, cell phones and smartphones, and now we have digital devices. Keyboards are outdated, because now you can talk to your device and tell it what to do. For that to work, the device needs a microphone and a way to store recordings, like on a cloud computer system — which could be accessed by others, such as Indiana or federal law enforcement officers with warrants.
Bentonville, Arkansas, in 2015 was the setting where a potential murder scene had a number of electronic devices recording all kinds of information that the police could find helpful, including a digital assistant with a microphone, reports the Marshall Project.
James Bates called 911 on the Sunday morning before Thanksgiving. He reported an odd and disturbing sight: one of his friends was floating face down in his hot tub, dead. After the police arrived he claimed he had no idea how it happened. He was very helpful to the police in another way: he allowed the police free access to his house, including whatever digital devices they might find.
The police went to work and reached out to the local utility. It informed them that Bates’ smart water meter showed a spike in use between 1:00 a.m. and 3:00 a.m., more water than he’d ever used during that time of day. It was as if he was washing off a crime scene, police may have thought, and they charged him with murder.
Amazon was ordered to turn over Bates’ digital assistant recording made before and after the body was found. Its microphone is constantly on, waiting for vocal commands, and sometimes background sounds are recorded on servers. Bates fought their attempts to access them, then gave up; but what the police found wasn’t helpful. Prosecutors dropped the charges in 2017, stating there wasn’t clear evidence a murder took place, according to CNN.
You can now buy a wide variety of smart appliances that can provide insight into your life. Smart TVs know what you like to watch and are listening for voice commands. Smart refrigerators have cameras inside and know what’s on their shelves. Smart mattresses track how you sleep and breathe. These are all potential sources of information and evidence for law enforcement.
We have some constitutional protections for our privacy, including the Fourth Amendment, which states, in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” Courts have interpreted it to mean the police can’t search your home, except in emergencies, without convincing a judge to sign a search warrant on the grounds that there’s “probable cause” that evidence of a crime will be found.
But there are exceptions, including the “third-party doctrine” which states that police don’t need a warrant to find information voluntarily shared with others, like a bank or internet utility. All smart devices share their information with servers, computers and other devices through the internet.
In a case involving stolen cell phones, the U.S. Supreme Court curbed the “third-party doctrine” as it pertains to information on cell-site location information (CSLI), which is automatically generated whenever a mobile phone connects to a cell tower; the data is stored by wireless carriers for years. According to Wired, the court ruled that generally the government needs a warrant in order to properly access and later use that information.
Chief Justice John Roberts wrote in the majority opinion, “In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”
As technology develops, so will the law. If you’re thinking about buying a smart device that may make your life easier in some way, remember … it also makes your life less private and easier for others, especially those in law enforcement, to pry into.
McNeely Stephenson has faithfully served the people and communities of Indiana for several years in a variety of criminal defense cases and will help you create a strategy that gives you the chance for the best possible outcome. With offices in New Albany and attorneys who are licensed to serve the Kentuckiana area, we have the knowledge, experience and resources to help. To ask a question or to set up a consultation, contact us today.