Amazon, Inc. is on the receiving end of another court order demanding it release the data and recordings associated with one of its Echo smart devices. For the uninitiated, Echo smart devices support voice interaction, music playback, and other administrative tasks for its users. The device responds whenever a user says a “wake word,” such as “Alexa” or “Echo.” After performing the given task, the device records and stores the interaction, which can later be accessed by the user or by Amazon.
In its November 5th order, the New Hampshire Superior Court demanded Amazon release two days-worth of data that state prosecutors believe may assist in proving a double murder. The case involves the tragic slaying of two female victims, Christine Sullivan and Jenna Pellegrini, on January 27, 2017 at Ms. Sullivan’s home in Farmington, NH. Timothy Verrill of Dover, NH stands accused of stabbing both women to death inside the home and for tampering with evidence. Upon searching the crime scene, police investigators found and seized Ms. Sullivan’s Echo smart device, which was sitting on the kitchen counter. The Echo device, if it was recording at the time of the killings, could be the state’s star witness.
Amazon, however, has said that it “will not release customer information without a valid and binding legal demand properly served on us.” This is not the first time that Amazon has argued over the admissibility of Echo data. Back in 2015, Amazon was served with a similar court order to produce Echo data and recordings potentially related to the drowning of an Arkansas man in a privately owned hot tub. In response to the order, Amazon filed a 91-page brief arguing that the prosecution should have to meet a higher burden of proof to get a warrant for the data and recordings. Amazon’s proposed standard would require the prosecution to prove there is no less intrusive way to obtain the information and to establish that there is a “sufficient nexus” between the device and the crime. Amazon argued that the First Amendment protected both user requests and Echo’s responses, claiming that permitting government access to the data “chills the exercise of First Amendment rights.” This is similar to the argument Apple made in its opposition to an order demanding it decrypt the iPhone password of one of the defendants in the San Bernardino terrorist case.
The defendant in the Arkansas case ultimately consented to releasing his data. Therefore the court did not have to answer the question of whether the data fell under the protection of the First Amendment. However, the question requires answering.
Amazon has yet to file a response to the New Hampshire court order. Unlike the Arkansas case, where the device belonged to the defendant, here, the device belonged to Ms. Sullivan—one of the two victims. This distinguishes the two cases because Verrill does not have standing to object to production of the evidence, and Ms. Sullivan’s right to privacy likely ceased to exist when she died. It will be interesting to see what, if any, arguments Amazon proposes to address these two issues.
One thing is certain: this will not be the last case to address the production of smart device data. As people’s lives continue to become more and more dependent on smart devices, state and federal courts must determine the protection afforded to smart device data, and what standard should be applied to access it.