New technology, new problems

Did you get a smart speaker or a digital assistant as a gift for the holidays? It’s entirely possible that you did, as many tech producers successfully “[h]aving persuaded customers to allow constantly listening microphones in their homes, tech companies are now adding internet-connected cameras and screens to their line-ups, testing the limits of consumer tolerance around privacy and security.” In fact, The Financial Times noted that, with the multiplication of iterations as tech companies look to keep up with Amazon Echo, “the industry is yet to figure out exactly how people will use these devices — or whether they will keep buying them once the novelty of a talking kitchen assistant wears off.”

With the emergence of new technologies such as digital assistants, inevitably, there are changes not only in consumer behavior resulting from the rise of disruptive technologies but also in the regulations that Deloitte notes “…exist to protect citizens and businesses, correct market failures, and make many aspects of our lives easier.” While the change that technology is causing has made some wonder whether government regulation still has a place in society, what is abundantly clear is that “regulators and the regulations they create and enforce still play a critical role—but one that may need to evolve to remain relevant and effective.”

Hey Google, tell us about digital assistants and how they work

Okay, Wired explains that “[d]igital assistants  like the Echo and Google Home are backed by sophisticated cloud-based artificial intelligence systems, connected to your home through the internet to at least one speaker and an always-on microphone.” If you use a set of phrases that the digital assistant will respond to, “…the digital assistant  is all ears, ready to do your bidding: streaming music, answering questions, controlling smart-home devices, scheduling events and, especially for Amazon, buying things.”

Can digital assistants be used against you in a court of law?

Here is where the digital assistant and its function makes things, in Wired’s words, tricky: a digital assistant will remember the commands it’s been programmed to learn (kind of like you have a dog that is extremely smart and adept at learning and recognizing commands) them. Wired then explains that “…[a]lso like a really smart dog, they can remember those commands forever. And this concept of an always-on, always-connected, always-remembering listening device is where it gets intriguing.”

On November 22nd, 2015, Victor Collins was found dead inside James Bates’s hot tub in Bentonville, Arkansas. A Bentonville policeman wrote that he saw an Amazon Echo in the home on Bates’s kitchen counter. The New York Times noted that this particular Echo “…voice-activated device has seven microphones, and is equipped with sensors to hear users from any direction up to about 20 feet. Among other things, it can play music, make to-do lists, stream podcasts and provide real-time news and information.”

Arkansas courts indicted Bates in February 2016, and “the police sought from Amazon “electronic data in the form of audio recordings, transcribed words, text records and other data” captured by the Echo.” Amazon’s posture is that everything involving the Alexa should be covered under the First Amendment of the US constitution, which guarantees free speech. According to Wired, for Amazon to hand over any Echo data:

the police must prove the state has a compelling need for the information and that the material can’t be obtained elsewhere (such as from another source—a receipt in a person’s possession, for instance). The information sought must be specific and integral to the investigation. If the police meet this test, a judge will review the information in private and decide what information, if any, should be disclosed.

In the end, while Amazon fought not to have to hand over the information, claiming “…that handing over such data would constitute a violation of consumer rights and that the investigators’ case wasn’t cause enough to hand over data collected by the Echo’s on-board microphones[,]” the defendant requested that Amazon hand over the information. In March of 2017, Amazon did submit the information to Arkansas authorities, but it was only that the request of the defendant.

Even if the case did get dismissed in the end, and the fight over First Amendment Rights did not blow up in the way expected from this case, it does bring up some points. Some could say that this is an evolution in expansions of privacy concerns in police investigations, stemming from the US Supreme Court’s decision in 1967’s Katz v. United States, which Wired cited in their article. Despite that, there still are limits to what the police can do and the evidence they can collect and subsequently use in court.

The problem, according to Wired, lies in the following: “[t]he lack of clear-cut legislation over who is legally entitled to the data from such devices means these kinds of cases will continue to surface.” Plus, Wired notes we must also acknowledge that “[c]urrent law, as always with fast-emerging technologies, will struggle to catch up.”

What do the tech companies do with this data?

But, cases like this also pose another issue: “[w]hy is all that data just sitting in Amazon’s servers in the first place?” In the Arkansas brief, their legal team claimed that “…all data is protected during transmission and securely stored.”

In the case of Google, Wired reported that:

Google’s privacy policies and other online materials about Home don’t directly address voice-recorded issues. But its policies do say, “Google will share your information with companies, organizations, and individuals outside of Google if Google has a good-faith belief that access, use, preservation, or disclosure of the information is reasonably necessary to meet applicable law, regulation, legal process, or enforceable government request.”

This text gives the guise that Google does not ask for user permission before sharing data. Therefore, Wired’s conclusion that these devices could be a Trojan Horse that consumers have no clue about the potential implications coming from these cases makes sense. As for consumers, and lawmakers in charge of regulating new business innovations, “[b]ased on what Amazon and Google say about their devices, everyone needs to recognize the unresolved legal issues involving this new technology.”

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