Amazon Echo.
Amazon Echo. (Photo: George W. Bailey/Shutterstock.com)

Amazon may have an uphill climb as it tries to prevent law enforcement from prying into data captured by its popular “Echo” device as part of an ongoing criminal investigation.

Lawyers for the Seattle-based retail giant earlier this month moved to quash a warrant to turn over recordings and other data stored in the cloud from an Echo owned by James Bates, who is suspected in the murder of a friend found dead in Bates’ hot tub in 2015.

The tug of war between Amazon.com Inc. and law enforcement is seen by many as the next battleground over digital privacy, akin in some respects to Apple Inc.’s 2016 showdown with the FBI over access to a locked iPhone. It highlights the tension between purveyors of “smart” devices that collect vast amounts of personal data and want to ensure continued user confidence, and authorities who see that data as potential evidence.

But while previous digital privacy cases have centered on encryption or when authorities need a warrant, the Echo case touches on what restraints should be put in place when authorities have a warrant and the data is accessible. Some experts see the current law as ill-equipped to handle the technologies the public is rapidly adopting.

“What ought to be the standard of disclosure for captured data once we have all (or most) decided to introduce a permanent wiretap into our home?” said Yochai Benkler, a Harvard professor who studies technology and the law. “We are moving into a universe where we need to … revise Fourth Amendment doctrine to set high barriers for access to data captured by a ubiquitous surveillance device like the Echo.”

The Echo is a small, table-top speaker that responds to user voice commands via a virtual AI assistant named “Alexa,” allowing users to run simple web searches or play a variety of media. The device stores user requests remotely on Amazon’s servers so that users can review what they asked for, the results, and even transcripts of what they said. Bates’ device was sitting in his kitchen when police searched his home.

In its motion to quash the warrant, Amazon plays on its early identity as an online bookseller and likens the Echo data to purchase records at a bookstore. The company’s lawyers at Davis Wright Tremaine cite well-established case law that the First Amendment guards people’s right to receive information and that the government cannot snoop into what they are reading without showing a compelling need.

It also contends that Amazon has First Amendment rights covering the responses that Alexa delivers back to its users. “Alexa’s decision about what information to include in its response, like the ranking of search results,” it says, is constitutionally protected opinion. (Amazon doesn’t go so far as to suggest that Alexa itself has free speech rights.)

But the problem with those arguments, legal experts say, has to do both with the aptness of the analogy between a bookstore and a voice-controlled virtual assistant that can record what was said in a room, and the limits of First Amendment protections when it comes to search and seizure.

“The suggestion that somehow because Amazon sells books—among the millions of things that Amazon sells—that Amazon is a bookstore, when really what the police are [trying to learn] is what was said at the house, that doesn’t make a whole lot of sense to me,” said Michael von Loewenfeldt, a partner at Kerr & Wagstaffe who litigates First Amendment cases.

Von Loewenfeldt also pointed out that authorities don’t appear to be on an open-ended fishing expedition into everything that Bates might have said or searched for through his Echo; instead, they’re asking for data from a 48-hour window around the alleged murder.

The attorney also said that closer analogy to Echo data would be browser history, which police have a clear right to inspect with a warrant. A warrant would also give police access to a diary or digital recorder, he noted.

Benkler called Amazon’s First Amendment theory “novel,” but doubted that it would hold given that it would apply differently to various smart devices depending on its uses.

“Part of the argument is based on the fact that people use Echo to look for books or movies, and the analogy is to bookstores,” Benkler said in an email. “But if that’s true, would the logic suggest that a Nest thermostat with similar voice capture and movement capabilities not be protected, because the primary use would be climate control? That seems haphazard and indefensible.”

The legal strategy has even drawn some skepticism from advocates of strong protections against government prying into digital content. “To my reading, Amazon is not making this up out of whole cloth, but it’s definitely not uncontroversial,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. “I’m not sure this is the doctrine that’s going to click with the courts.”

Amazon did not respond to an email asking about the case on Monday, and its lead lawyer, Washington-based Davis Wright  partner Laura Handman, declined to comment.

Standing Its Ground

Amazon first was served a warrant in December 2015, after the police in Bentonville, Arkansas, searched Bates’ home and found the Echo device. The following February, it partially complied by handing over “subscriber information” and purchase history associated with Bates’ account. But it hasn’t handed over any recordings or transcripts.

The company, in some ways, seems to see the case as an existential clash, much like Apple’s stand against the FBI over encryption after the San Bernardino shooting. The comparison is not perfect, since Apple was being asked by the FBI to break its own security features in order to provide access to a terror suspect’s iPhone, while Amazon has possession of Bates’ Echo data and is refusing to turn it over.

But both companies are keenly aware of the public image ramifications of authorities exploiting devices that often capture extremely personal information. In its brief, Amazon’s attorneys cite the U.S. Supreme Court’s decision in Riley v. California, in which the court held that police could not search a suspect’s cellphone without a warrant and noted that the devices these days contain the “sum of an individual’s private life.”

Amazon also seems to want to not have to be involved in actually forking over the information. In its motion, it notes that authorities have obtained a search warrant for Bates’ Huawei Nexus smartphone, but that police can’t access it (presumably because it’s locked). “If the defendant had installed the Alexa app, and the cellphone could be accessed, then any stored audio recordings, transcripts of recordings, and records of responses from Alexa would be accessible on the cellphone,” it said.

Aside from the bookstore analogy, Amazon’s argument based on the company’s free speech interest in Alexa’s answers also seems to be on tenuous ground. While it’s true that courts have recognized that companies have First Amendment rights in the content generated by an algorithm—such as search results—that doesn’t necessarily have any bearing on whether police can get that information with a warrant.

The two citations that Amazon provides deal with starkly different cases. The first, Zhang v. Baidu.com, is a civil case involving activists who sued China’s largest search engine for blocking results related to the democracy movement in China. A New York district court judge held that Baidu Inc.’s editing of its results is protected by the First Amendment.

In the second case, a district judge in Oklahoma dismissed a civil suit brought by a digital advertising company against Google after its page ranking was decreased in Google search results. The court granted Google’s motion to dismiss, holding that the page ranks were “constitutionally protected opinions.”

The case, Arkansas v. Bates, 04CR-16-370, is pending in Circuit Court of Benton County.

Amazon may have an uphill climb as it tries to prevent law enforcement from prying into data captured by its popular “Echo” device as part of an ongoing criminal investigation.

Lawyers for the Seattle-based retail giant earlier this month moved to quash a warrant to turn over recordings and other data stored in the cloud from an Echo owned by James Bates, who is suspected in the murder of a friend found dead in Bates’ hot tub in 2015.

The tug of war between Amazon.com Inc. and law enforcement is seen by many as the next battleground over digital privacy, akin in some respects to Apple Inc. ‘s 2016 showdown with the FBI over access to a locked iPhone. It highlights the tension between purveyors of “smart” devices that collect vast amounts of personal data and want to ensure continued user confidence, and authorities who see that data as potential evidence.

But while previous digital privacy cases have centered on encryption or when authorities need a warrant, the Echo case touches on what restraints should be put in place when authorities have a warrant and the data is accessible. Some experts see the current law as ill-equipped to handle the technologies the public is rapidly adopting.

“What ought to be the standard of disclosure for captured data once we have all (or most) decided to introduce a permanent wiretap into our home?” said Yochai Benkler, a Harvard professor who studies technology and the law. “We are moving into a universe where we need to … revise Fourth Amendment doctrine to set high barriers for access to data captured by a ubiquitous surveillance device like the Echo.”

The Echo is a small, table-top speaker that responds to user voice commands via a virtual AI assistant named “Alexa,” allowing users to run simple web searches or play a variety of media. The device stores user requests remotely on Amazon’s servers so that users can review what they asked for, the results, and even transcripts of what they said. Bates’ device was sitting in his kitchen when police searched his home.

In its motion to quash the warrant, Amazon plays on its early identity as an online bookseller and likens the Echo data to purchase records at a bookstore. The company’s lawyers at Davis Wright Tremaine cite well-established case law that the First Amendment guards people’s right to receive information and that the government cannot snoop into what they are reading without showing a compelling need.

It also contends that Amazon has First Amendment rights covering the responses that Alexa delivers back to its users. “Alexa’s decision about what information to include in its response, like the ranking of search results,” it says, is constitutionally protected opinion. (Amazon doesn’t go so far as to suggest that Alexa itself has free speech rights.)

But the problem with those arguments, legal experts say, has to do both with the aptness of the analogy between a bookstore and a voice-controlled virtual assistant that can record what was said in a room, and the limits of First Amendment protections when it comes to search and seizure.

“The suggestion that somehow because Amazon sells books—among the millions of things that Amazon sells—that Amazon is a bookstore, when really what the police are [trying to learn] is what was said at the house, that doesn’t make a whole lot of sense to me,” said Michael von Loewenfeldt, a partner at Kerr & Wagstaffe who litigates First Amendment cases.

Von Loewenfeldt also pointed out that authorities don’t appear to be on an open-ended fishing expedition into everything that Bates might have said or searched for through his Echo; instead, they’re asking for data from a 48-hour window around the alleged murder.

The attorney also said that closer analogy to Echo data would be browser history, which police have a clear right to inspect with a warrant. A warrant would also give police access to a diary or digital recorder, he noted.

Benkler called Amazon’s First Amendment theory “novel,” but doubted that it would hold given that it would apply differently to various smart devices depending on its uses.

“Part of the argument is based on the fact that people use Echo to look for books or movies, and the analogy is to bookstores,” Benkler said in an email. “But if that’s true, would the logic suggest that a Nest thermostat with similar voice capture and movement capabilities not be protected, because the primary use would be climate control? That seems haphazard and indefensible.”

The legal strategy has even drawn some skepticism from advocates of strong protections against government prying into digital content. “To my reading, Amazon is not making this up out of whole cloth, but it’s definitely not uncontroversial,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation. “I’m not sure this is the doctrine that’s going to click with the courts.”

Amazon did not respond to an email asking about the case on Monday, and its lead lawyer, Washington-based Davis Wright  partner Laura Handman, declined to comment.

Standing Its Ground

Amazon first was served a warrant in December 2015, after the police in Bentonville, Arkansas, searched Bates’ home and found the Echo device. The following February, it partially complied by handing over “subscriber information” and purchase history associated with Bates’ account. But it hasn’t handed over any recordings or transcripts.

The company, in some ways, seems to see the case as an existential clash, much like Apple ‘s stand against the FBI over encryption after the San Bernardino shooting. The comparison is not perfect, since Apple was being asked by the FBI to break its own security features in order to provide access to a terror suspect’s iPhone, while Amazon has possession of Bates’ Echo data and is refusing to turn it over.

But both companies are keenly aware of the public image ramifications of authorities exploiting devices that often capture extremely personal information. In its brief, Amazon’s attorneys cite the U.S. Supreme Court’s decision in Riley v. California, in which the court held that police could not search a suspect’s cellphone without a warrant and noted that the devices these days contain the “sum of an individual’s private life.”

Amazon also seems to want to not have to be involved in actually forking over the information. In its motion, it notes that authorities have obtained a search warrant for Bates’ Huawei Nexus smartphone, but that police can’t access it (presumably because it’s locked). “If the defendant had installed the Alexa app, and the cellphone could be accessed, then any stored audio recordings, transcripts of recordings, and records of responses from Alexa would be accessible on the cellphone,” it said.

Aside from the bookstore analogy, Amazon’s argument based on the company’s free speech interest in Alexa’s answers also seems to be on tenuous ground. While it’s true that courts have recognized that companies have First Amendment rights in the content generated by an algorithm—such as search results—that doesn’t necessarily have any bearing on whether police can get that information with a warrant.

The two citations that Amazon provides deal with starkly different cases. The first, Zhang v. Baidu.com, is a civil case involving activists who sued China’s largest search engine for blocking results related to the democracy movement in China. A New York district court judge held that Baidu Inc.’s editing of its results is protected by the First Amendment.

In the second case, a district judge in Oklahoma dismissed a civil suit brought by a digital advertising company against Google after its page ranking was decreased in Google search results. The court granted Google ‘s motion to dismiss, holding that the page ranks were “constitutionally protected opinions.”

The case, Arkansas v. Bates, 04CR-16-370, is pending in Circuit Court of Benton County.