Fourth Amendment in the Digital Age: Discovery of Digital Assistants
is now moving closer to a position that people have dreamed of since the science-fiction movies of the 70s. Over time, we seem to be moving closer to an assistant who is more like a human companion by listening for requests, controlling smart devices, and making life easier in a smart environment. At the current market, smart devices are getting better connected with digital assistants like Alexa, Google, Siri, and act as taskmasters. Yet, putting aside the issue of data security from external intrusion (i.e., hacking) there is another issue that is slowly rising: The use of digital assistants for data collection to
. How could this happen? What might a digital assistant yield that law enforcement needs? Could a third party be forced to hand over information?
Recently, a prosecutor in Arkansas has been seeking information from a defendant's Amazon Echo Unit, to figure out why and how a man ended up dead in his tub. In the case of some digital assistants, most notably Amazon's Alexa, the assistant may be always listening and performing tasks when it hears words like "Hey Alexa" or "Alexa" before performing the requested action. Because of this, there is the chance that at some point, Alexa may have heard incriminating information, which law enforcement can use as evidence. However, according to Amazon, Alexa only begins recording after the cue word "Alexa" is said in an audible manner. So, unless a criminal action was prefaced by saying "Alexa," it was not be recorded.
For law enforcement, even putting aside the possibility of recorded audio, the collection of devices connected to the so-called "cloud" and a digital assistant as a "hub" could be an important feature that can help solve crimes. For example, Alexa has access to various devices through "skills," and even
, there are cars and other smart devices coming into the market that Alexa connects with and collects information (e.g., biometrics, geolocation) that can be utilized.
Even in cases where Alexa, or some other digital assistant, records criminal activity, it would be subject to established state or federal laws. For example,
Riley v. California
requires law enforcement to seek a warrant for obtaining electronic data from a digital device (e.g., cellphone). Yet, data not directly in your control, such as information within the "cloud," could raise concerns over the third-party doctrine, a situation where information can be obtained (without a warrant) because it was shared with a third party. Given the interconnected nature of the new technology landscape, it is foreseeable that a third party will be involved in the information sharing process. Thus, any information given to the digital assistant and placed on the cloud, runs the risk of discovery through the third-party doctrine.
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