Earlier, I wrote about the efforts by the Bentonville, Arkansas police department to compel Amazon to produce – by search warrant issued by an Arkansas judge – the contents of conversations that either the perpetrator or victim of a murder might have had in the presence of an Amazon Echo.

I’ve also written generally about this new field of devices that are always listening, and their impact on privacy.  After several months fighting a search warrant compelling Arkansas police to search for and seize the recorded files (and Amazon Echo’s responses thereto), Amazon has filed a Motion to Quash the search warrant on the ground that what you say to your device is protected Free Speech under the First Amendment, and that the government needs more than a warrant and “probable cause” to seize it. They need to establish a “compelling need” for these documents.

Amazon argues that free speech protects words, deeds or expressive conduct, and that when you talk to your Echo, you are creating a record of First Amendment protected activity.  While statements made while planning (or executing) a murder may not be subject to what the courts call “strict” or “heightened” scrutiny, other things you tell your robot might be.  So, for example, if you tell your Echo what music you want to hear, (“Alexa, play Keep Your Love Alive by Heart”) or what movies you want to watch (“Alexa, watch Top Gun”) or what books you want to read or order.

By tracking these things, or what purchases someone makes – particularly of expressive materials – you can invade their First Amendment protected zone of activity. It’s not that the government can’t get this information – it’s that it must show a higher or heightened level of need to get it.  Years ago, I helped represent a local DC bookstore that was fighting Ken Starr’s demand that the bookstore produce the records of books purchased by former White House intern Monica Lewinsky.

Because a book isn’t the same thing as a candy bar, and because book purchases (and library records) reveal protected information, a higher level of scrutiny would be required to compel production. (Ultimately, the issue was moot when the special prosecutor obtained Lewinsky’s cooperation and she produced the records.)

As the U.S. Supreme Court once noted, “[a] requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is indeed the beginning of surveillance of the press…. Once the government can demand of a publisher the names of the purchasers, the free press as we know it disappears … the purchase of a book or pamphlet today may result in a subpoena tomorrow.” United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (Douglas, J., concurring).

Increasingly we are using connected devices for exactly this kind of expressive activity.  Our searches on Google, the websites we visit, and our media streaming habits are all expressive activity.  Even the music or video that we download (legally or not) is a record of expressive activity – whether it’s a pirated copy of La La Land, or illegally downloaded pornography, these records are expressive.

Our IoT devices similarly capture and monitor information related to expressive conduct.  It’s not enough that the documents be “relevant” to a criminal investigation.  There must both be a compelling need for the records AND the government must show that the records are not available anywhere else.

In the old days, expressive records would be found in bookstores, libraries, and newsstands.  They would also be found in video rental stores (kids, ask your parents), and even on the records of cable TV companies.  Indeed, to reflect this “heightened scrutiny” standard (and in response to the Clarence Thomas hearings), Congress enacted laws protecting things like video rental records from mere demand. Now people consume and create expressive content in new ways.  Electronic “storefronts” like Amazon and eBay hold expressive content all the time.  And not just the questions asked of Alexa, but the answers “she” gives as well.  Law changes technology and vice versa.

One problem with Amazon’s argument: all of the cases involving police seeking “expressive” materials – books, movie rentals, etc. – involves either grand jury or administrative subpoenas.  To get a subpoena, you need neither probable cause nor a warrant.  As long as you think the materials are relevant, you can subpoena them.  It’s common to refer to them as a “fishing expedition.”  So when the court imposes a duty of higher scrutiny on a subpoena, it’s imposing at least some scrutiny.

But in the Amazon Echo case in Arkansas, the police had a search warrant.  A search warrant supported by probable cause.  So there was already some scrutiny involved – although not necessarily what Amazon called “strict” scrutiny.  So while a subpoena to a journalist for their notes might require high scrutiny, it’s not clear that a search warrant to search, say, a student newspaper for photographs of a protest to identify rioters would require anything more than probable cause.

This isn’t the only issue to be resolved in this case.  Other issues involve the authority of an Arkansas court to compel a Washington company to produce records which undoubtedly are not in the State of Arkansas, and the fact that the search warrant fails to specify the “place” it is to be executed and the “place” to be searched – an essential constitutional requirement.  That’s what happens when technology overcomes the law, and these issues will be the subjects of future articles.

Until then, be careful what you say.  Your computer may be listening.  Or lip-reading.

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