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Monday, March 27, 2017

Columns

Amazon Echo is a Fourth Amendment conundrum


In late 2015, police issued a warrant to Amazon regarding data collected by Amazon’s Echo device as possible evidence in a murder case in Bentonville, Arkansas. Amazon recently filed an argument against the warrant and intends to have the warrant thrown out on a First Amendment grounds.

Amazon Echo is a smart speaker fitted with microphones that acts as an intermediary for a number of personal user requests. It is concerning to the privacy of Amazon Echo users as well as the users of smart devices at large that the grounds for what can be used to track digital footprints and reasonably searched is clearly communicated.

Certainly the First Amendment is implicated here. From a commercial standpoint, forthright knowledge of the ability of law enforcement agencies to track your purchases and search requests has the potential to have a chilling effect on consumer’s purchases and queries. From a consumer standpoint, the freedom of inquiry as well as the freedom to purchase materials, both qualities of Amazon’s product, are First Amendment-related concerns.

Although, the First Amendment argument has merit and Amazon deserves praise for taking such measures, It will surely be interesting to see how this case address some of the uncertainties that surround technological advancement and the Fourth Amendment.

In Katz v. United States, the protection from unreasonable search and seizures was afforded by the Fourth Amendment. It established both that public telephone booths still had a right to privacy under certain conditions largely because a physical intrusion through the booth’s door constituted a search. This intrusion was considered a breach of a reasonable expectation of privacy. If sliding a telephone booth shut constitutes a reasonable expectation of privacy, It should be safe to assume that a personal device that operates within a person’s home is a protected privacy as well.

The third party doctrine insinuates that consumers have no expectation of privacy with their information, even in regards to institutions such as banks, and is a flawed theory with devices that continue to facilitate the convergence of different platforms and facets of a person’s public life.

The very idea that the device is meant to consolidate other unrelated devices makes it analogous to a smart-remote. This signifies that if privacy and speech protection doesn’t suffice from case law concerning one of the devices it consolidates, it inevitably will in another. For instance, the decision in Riley v. California largely protected from warrantless searches of digital data on cell phones under the Fourth Amendment, even though United States v. Knotts didn’t provide the same protection to the defendant when concerned with a radio transmitter used for surveillance. Amazon Echo can act both as a radio transmitter and with the capacity to record user-specific data, companies and the supreme court should err on the side of caution.

The Supreme Court historically decides the precedents for search and seizure of information piecemeal as the new technology surfaces and changes how information gets transmitted. First Amendment arguments can lend credit to the case against surrender of personal digital footprints, but the argument for Fourth Amendment protection has interesting possibilities when you consider devices as intermediaries to your “smart” home.

Opinion columnist Nicholas Bell is an MBA graduate student and can be reached [email protected]

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