AS YOU HOOK UP the Amazon Echo you received for Christmas, consider this: you have welcomed an uninvited guest into your home and life. The Alexa voice service that accompanies the Echo may record and store conversations you have once Alexa is activated.
Also appreciate that current Fourth Amendment law — the third-party doctrine — may well not protect those recordings from access by police. Such access is a crafty investigative tool and a creepy invasion of privacy. How does and will New Hampshire negotiate this tension?
An ongoing murder case details third-party privacy concerns well. The police have charged Timothy Verrlll with stabbing Christine Sullivan and her friend to death in the kitchen of Sullivan’s home in Farmington. During the investigation, police found an Amazon Echo in the kitchen that may have recorded what occurred during the homicides.
The technical details: Echo is in standby mode until activated by what is called a “wake word.” That word connects it with Amazon’s cloud-based Alexa Voice Service, which receives and responds to personal commands. Audio is not stored on the Echo device, but a recording and transcript are stored on Amazon servers. In fact, customers can even review their voice interactions through the Alexa App.
In this case, voice recordings from inside someone’s (not the defendant’s) residence were stored in the Cloud by Amazon. In an abundance of caution, the prosecutors obtained what was effectively a search warrant supported by probable cause. It ordered Amazon to turn over whatever recordings of kitchen voices existed on its Alexa Voice Service.
The craftiness of this investigative effort is matched by its creepiness. It begs reconsideration of an older question: what is an individual’s privacy right to information held by a third party. It could be a conversation stored “in the cloud” by Amazon; it could be cellphone locational information held by Verizon; or, it could be personal information about internet behavior stored by Comcast.
Until recently, a jurisprudential concept known as the third-party doctrine resolved such circumstances: when a person shares information with a third party, the person loses his or her reasonable expectation of privacy to the data shared.
In 1976, the U.S. Supreme Court found that one has no reasonable expectation of privacy in several months’ worth of cancelled checks, deposit slips, and account statements held by their bank. Law enforcement agents can obtain those records without a search warrant.
In 1979, the Court said that one has no reasonable expectation of privacy in the phone numbers they dial to place a call. Without a recognition of that expectation, the government could obtain those numbers from the phone company without a warrant or probable cause.
In light of evolving technology however, the Supreme Court has begun to reconsider the third-party doctrine. In Carpenter v. U.S. in 2018, the Court found that a person had a reasonable expectation of privacy in cell site location information stored with the provider, which can detail where a person was at the time a call was made or received.
The Carpenter approach makes more sense in today’s tech era where people rely daily, even hourly, on technology that collects, transmits and stores personal data with a third party. The type and amount of information that is collected by phones, laptops, voice service devices, and other tech feels more a part of one’s zone of privacy than it does a part of the public realm.
We are lucky in New Hampshire. We are ahead of the curve as to privacy and evolving technology. The newest addition to the New Hampshire Constitution, Part I, Article 2-b, which gained more than 80 percent of voters’ support this past Election Day, gives specific protection to one’s personal or private information.
To reinforce that Article 2-b applies to information held by third parties, a bill has been introduced, LSR 2019-1066, that would rein in the third-party doctrine. It would require police to obtain either explicit consent or a probable cause warrant before accessing personal information held by a third party, like Alexa Voice Service.
Technology will continue to intrude on our lives more and more intimately. This does not mean we have to sacrifice privacy rights. It means we must be proactive in updating our privacy laws to address the technological evolution. New Hampshire must continue to lead on this front through passage of LSR 1066 this legislative session.