Associate Editor, American Journal of Trial Advocacy
It may have been the reasonable price, or it may have been the prospect of having a personalized “digital assistant” ready to respond to an individual’s every command, but the Amazon Echo—and its smaller (and, let’s face it, cuter) progeny, called the Echo Dot—captivated shoppers and was nearly impossible to find this holiday season. The same can be said for the Echo’s main competitor, the Google Home, as there has been a gradual demand over the last few years for people to use “smart devices” in their homes to regulate temperature, control water pressure, or allow for control of a home’s security system. Amazon’s Echo, which is a cylindrical, 9-inch tall speaker, connects to the Internet over the home’s WIFI and listens continually so that it may “wake up” immediately and respond to users’ voice commands. The Echo is able to conduct internet searches, play music from an person’s playlist or YouTube, tell jokes, and perform other voice-activated tasks like ordering a pizza or turning the home’s lights on and off.
In the weeks following the holidays when these devices would have shown up in people’s stockings, though, the Amazon Echo dominated the news cycle—and not because of its spectacular sales numbers for the 2016 calendar year, which topped five million units sold as of December 2016. Some of the concerns consumers have had with their Echoes have been relatively trivial, like those Echo owners with names similar to “Alexa”, which is the name to which the Echo responds, who complain that every time someone calls him or her by name the Echo wakes up and tries to assist him or her. Some complaints have proven expensive, but, on the whole, non-harmful, as children have treated the Echo like a fairy godmother, asking it to send them treats and toys. There have been a few reported instances of Amazon boxes arriving at homes to elated children and confused parents. Funnier still, the device is so sensitive, that news stories about these children ordering toys have triggered Echoes in viewers’ homes, causing the same items to be ordered. Luckily, for these people, the Echo’s “trigger word” may be changed, and there are parental controls that may be enacted to prevent certain purchases from being made. More seriously, however, one particular Amazon Echo made the news in December 2016 for the role it may play in an Arkansas murder case. This has led some of the Echo’s critics to voice privacy concerns, while those in the legal field understand that the potential use of the contents from cloud-based “smart” devices may set a new precedent for the way electronically stored information is extracted and presented in a courtroom.
The Case in Question
On November 22, 2015, Victor Collins was found floating face-up in his friend, James Andrew Bates’s, hot tub in Bentonville, Arkansas. On the night in question, Bates told police that he had invited Collins and two other friends, Owen McDonald and Sean Henry, over to watch the Arkansas Razorbacks game. He claims that he decided to go to bed about 1 a.m., but allowed the victim and McDonald to hang out and continue drinking in his hot tub. Some time in the following hours, law enforcement believes, a struggle ensued and Collins was strangled to the point of unconsciousness, and then placed in the hot tub to drown. According to Bates’s affidavit, he slept through the night and found Collins face down in the water when he woke up. Owen McDonald claims that Bates was not being truthful when he said that he left him alone with the decedent. In fact, McDonald claims he left around 12:30 AM before Bates even went to bed, and this story has been corroborated by McDonald’s wife. When police arrived on the scene, they found signs of a struggle, broken bottles, spots of blood around the hot tub, and the back patio was wet. It was evident that Collins’s death was not an accident. Bates has since been charged with first-degree murder, however he maintains his innocence. He was released on bond in February 2015, and he is currently awaiting trial.
After a thorough search of Bates’s home, police found that it was equipped with several smart devices including a Nest thermostat and a Honeywell alarm system, as well as a smart water meter, and an Amazon Echo. The key witness in the case, or at least the one that has received the most attention, may be his Amazon Echo, which, police records say, was activated multiple times that evening preceding the murder, and likely controlled the music Bates was streaming while he had people over. In August, an Arkansas state judge signed a search warrant, which allowed police to seize Bates’s devices, including the Echo, an iPhone 6S, a MacBook pro, a PlayStation 4, and three tablets. The Bentonville police also made two requests to Amazon to provide them with all “audio recordings, transcribed records, text records, and other data” made on Bates’s Echo device. Amazon has denied both requests so far, explaining that they refuse to, “release customer information without a valid and binding legal demand properly served on us” and stating further that, “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course”. They have, however, provided Bentonville law enforcement with Mr. Bates’s basic subscriber and account information.
The Echo and Privacy Concerns
The high profile nature of this case and of the online shopping giant that has been unwittingly thrown into the crosshairs has also shined a public light on just how the Amazon Echo works. For many it is cause for concern. The device works by passively listening with its seven microphones and multiple speakers to everything those around it say. None of this information is actually sent to Amazon until the Echo hears someone say “Alexa” and then it begins to actively record. That audio recording, which contains the data twenty seconds before the conversation the actor has with Alexa as well as twenty seconds following its conclusion, is then sent to Amazon’s cloud servers, where the recorded message is run through a speech-recognition neural network and a response or action is sent back to the device. New York Magazine writer Jake Swearingen likened the process to a student taking notes in class—a student listens throughout the class, but only writes things down when the professor says something important. Although the Echo is technically always listening, this is par for the course for smart devices. It is no different from devices generally thought to be innocuous, like the Nest thermometer, which is constantly analyzing the temperature in a user’s home, the Fitbit activity tracker which tracks user’s movements when they are both awake and asleep, or the iPhone’s famous personal assistant Siri, who constantly listens for users to say, “Hey Siri!”.
Many of those who own the product are afraid that if a court requires Amazon to hand over recordings from Bates’s device that their own searches may be subject to government interception sometime in the future. Others have drawn comparisons between the potential precedent that could be set in this case and the possible legal implications that arose in an early 2016 case in which the FBI demanded that Apple help them break into the iPhone belonging to the ISIS-affiliated terrorist, Syed Fayook, who shot and killed 14 people in San Bernadino, California. In that case, Amazon joined Apple and more than a dozen other tech giants in filing a legal brief in support of Apple’s position. The brief claimed that such government surveillance was detrimental to American security. It appears that Amazon is attempting, until they are legally bound to comply with the Bentonville District Attorney’s Office, to stand by their dedication to consumer privacy.
On the other hand, Nathan Smith, the prosecuting attorney in Bentonville, Arkansas claims that their request on Amazon for data has been spun as an issue of privacy, but that everything his office has done has been legal and even typical in the course of an investigation of this type. Smith explained, “The purpose of doing the search warrant is to determine if there is information on that Echo device that would either be helpful in the prosecution of Mr. Bates, or be exculpatory for Mr. Bates, and we as law enforcement have an obligation to find out what’s on that device to ensure that justice is done . . . It really doesn’t have anything to do with [a person’s privacy]. In our legal system, law enforcement can search property by lawfully obtaining a search warrant.” Smith explained that, while the technology in question was new, the concept of obtaining similar search warrants is not. He explained, “It is a search warrant for a new device, but the legal concept is old as Methuselah.”
“Alexa, Can you Help Me Get Blood Out of My Jeans?” and What Law Enforcement Actually Hopes to Find
While it is highly unlikely that Mr. Bates actually said something that would amount to a direct admission of his guilt, or asked Alexa how to kill his co-worker, Bentonville Law Enforcement generally has no idea what they will be able to recover if they are ever granted access to the information in Amazon’s possession. As of right now, police have seized the actual Echo device from Bates’s home per their search warrant, but very little substantive information is stored on the device because it has little to no physical hard drive space. What law enforcement hopes to find if granted access to see his searches, is a better picture of what was happening on the evening in question. They are hoping to see if Mr. Bates asked Alexa to complete any searches that may correspond to the events of the evening. They also want to see if anything was said that may have accidentally triggered Alexa to begin listening in hopes that she picked up sounds of a struggle or an argument between the men if one existed. They are also concerned with the fact that the Echo could control his home security/alarm system and the home’s lights, which, if controlled from the Echo on that evening, could help give law enforcement an indication of what was happening on the premises.
Other Useful Evidence Likely Be Gained From Bates’s Smart Devices
Thus far, the smart device that has proven to be most useful to the prosecution’s case against Mr. Bates is the information taken from his home’s smart water meter. According to law enforcement, they sought information from this device because Mr. Bates is also accused of tampering with physical evidence at the scene of a crime. Police believe tampering occurred because it was evident when police arrived at the scene that someone had attempted to spray down the patio with a hose in order to get rid of blood. The police came to this conclusion when they discovered blood splatters that the person trying to clean up had missed.
As such, the Bentonville District Attorney’s Office requested information about Bates’s water usage on the night of the incident from the county’s Utilities Department. A smart water meter like the one Bates had monitoring his water consumption is designed to take a measurement every hour of how much water is used. Throughout the evening when the four men were watching the football game, the most water they used was ten gallons of water per hour. However, the meter shows that from 1 AM until 3 AM, the time when the murder is believed to have occurred, someone in Bates home used one hundred and forty (140) gallons of water. The amount of water consumed per hour during this two hour period (roughly 70 gallons/hour) was, according to the records gathered from the smart meter, more water than he had ever used in one hour. The police contend that this would have been the time when Bates was hosing down his patio to rid his home of evidence before he alerted the police of Collins’s death. This excessive water use was a large consideration the police asserted when claiming they had probable cause in order to file their arrest warrant for Bates and take him into custody. It is unclear at this time if this information will be admissible at trial, and, like the potential information to be gathered from the Amazon Echo, if it is admitted, this evidence still must be persuasive enough to convince a jury of Mr. Bates’s guilt beyond a reasonable doubt. No matter what happens in the coming months, the smart devices in Mr. Bates’s home have already put him in jail…and they may have the potential to put him there for life.
Lorraine, The Future of Evidence Law, and The First “Smart” Witnesses?
If Bentonville’s prosecutor is allowed access to the electronically stored information on Bates’s Echo, and something relevant and incriminating is found, it would be far from the first time information from personal devices was used to convict its owner of a crime. People have been convicted of crimes based on location data “pinged” from cell towers to a perpetrators’ cell phone, linking them to the location of the crimes committed and at the correct time. Similarly, the court now regularly delves into a defendant’s relevant text messages after making a request of that person’s cell phone provider. This was seen most recently and prominently in the case where Justin Ross Harris was convicted of purposefully leaving his toddler in a hot car to die. Individuals’ Internet searches have also been used against them in a court of law, as was seen in the prosecution’s presentation of Casey Anthony’s searches about chloroform in the high profile case in which she was accused of murdering her daughter. Although Ms. Anthony was acquitted, the jurors and the public regarded the introduction of the searches to be quite damning (although not determinative). In recent years, video game data has even been recovered and used as evidence, and one young man was convicted of murdering another teenager after admitting to the killing while playing World of Warcraft. Most recently, a Fitbit activity tracker was used to prove that a woman who had accused a man of sexually assaulting her in her sleep had made up her claims. Fitbit data showed that she was not asleep during the time she claimed the assault occurred, but she was actually up and walking around at that time. It allowed not only the accused to be acquitted, but it also allowed her to be charged with making a false sexual assault claim.
All of this evidence is formally known as electronically stored information (ESI). When determining the admissibility of certain ESI, most courts conclude the same evidentiary considerations apply to ESI as apply to other evidence. The court in Lorraine v. Markel Insurance, said the admissibility of ESI can be broken down into “a series of hurdles to be cleared by the proponent of the evidence.” The Lorraine hurdles are presented in the form of a series of questions that must be answered in order to determine admissibility. They are: (1) Is the ESI relevant under Federal Rule of Evidence 401?; (2) Is the ESI authentic under Federal Rule of Evidence 901?; (3) Is the ESI hearsay or subject to an exception under Federal Rules of Evidence 801-807?; (4) Is the form of ESI an original or duplicate under Federal Rules of Evidence 1001-1008?; and, (5) Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403?
What is different in this case is that, although an Echo owner’s query functions like a standard Internet search, it is not made in a forum that is reasonably known to be public. Although it is likely that most users know this is not actually the case, something about being at home with the search process set up to feel like a conversation seems to detach users from the reality of the situation. But that is what “smart” devices are for—to create an alternate reality in which those who own them no longer have to do certain jobs themselves. These devices work by knowing where people are, what they are doing, and keeping logs of this activity in order to get a better understanding of the users’ habits and preferences. Although this does not seem as tangible as a Google search or a text message, these activity logs are the ESI that may be found within a smart device. It is reasonable to believe, as these devices become more prevalent, that if ESI extracted from one of these smart devices is able to clear the Lorraine hurdles that it may be presented in a court of law.
Some, like Nuala O’Connor, president of the Center for Democracy & Technology (and, full disclosure, former Amazon employee), are still concerned that, whether any given piece of ESI is admissible or not, that it is irresponsible for prosecutors to present evidence of a smart device user’s changing of a habit or behavior as character evidence. This, she reasons, is a dangerous precedent, because prosecutors and police could simply “guess wrong”. This is a concern shared by many. For this reason, it is also reasonable to believe that, in the following years that these smart devices will become so prevalent that the Federal Rules of Evidence are amended to reflect the realities of the digital age. Even Marc Rotenberg, the president of the Electronic Privacy Information Center concedes that, “there needs to be a clear legal standard that governs law enforcement access” to these smart devices. For the time being, it appears that current evidence rules will continue to be contorted to apply to the changing technology.
While it is interesting, often unsettling, but immensely important to conjecture about the future of “smart” devices and their role in the American legal system, the answer to how data from these devices will be handled, both in this case and the future, will likely be handed down on March 17, 2017, at Mr. Bates’s discovery hearing. Depending on the outcome, Alexa may be able to testify on her own behalf.
 Spencer Soper, Amazon Sells Out of Echo Speakers in Midst of Holiday Rush, Bloomberg technology (December 20, 2016, 6:46 PM), https://www.bloomberg.com/news/articles/2016-12-21/amazon-sells-out-of-echo-speakers-in-midst-of-holiday-rush.
 Kate Morley, Sixfold Increase in Demand for ‘Smart Home’ Gadgets—Despite Security Fears, The Telegraph (October 24, 2016, 6:00 AM), http://www.telegraph.co.uk/news/2016/10/24/sixfold-increase-in-demand-for-smart-home-gadgets—despite-secu/.
 Gabe Friedman, Could Amazon Echo Hold Evidence in a Murder Case?, Bloomberg Law: Big Law Business (Jan. 4, 2017), https://bol.bna.com/could-amazon-echo-hold-evidence-in-a-murder-case/.
 Jeff Dunn, It’s Been a Good Year for the Amazon Echo, Business Insider, (Dec. 28, 2016, 3:51 PM), http://www.businessinsider.com/amazon-echo-sales-figures-stats-chart-2016-12.
 Paul Szoldra, Here’s How Amazon Makes Sure People Named ‘Alexa’ Won’t be Constantly Annoyed by their Echo, Business Insider (July 22, 2016, 3:22 PM), http://www.businessinsider.com/amazon-alexa-name-2016-7.
 Little Girl Orders Dollhouse and Cookies from Amazon’s Alexa, Racks up Big Bill, Fox 59 (Jan. 8, 2017), http://fox59.com/2017/01/08/little-girl-orders-dollhouse-and-cookies-from-amazons-alexa-racks-up-big-bill/.
 Amazon ‘Alexa’ Orders Dollhouses for Owners After ‘Hearing’ TV Report, CBS Dallas Fort worth (Jan. 6, 2017, 12:32 PM), http://dfw.cbslocal.com/2017/01/06/amazon-alexa-orders-dollhouses-for-owners-after-hearing-tv-report/.
 See Szoldra, supra note 6.
 See Amazon ‘Alexa’ Orders Dollhouses, supra note 9.
 Andrew L. Rossow, Amazon Echo May Be Sending Its Sound Waves Into The Court Room As Our First ‘Smart Witness’, The Huffington Post (Updated Dec. 30, 2016), http://www.huffingtonpost.com/entry/amazons-echo-may-be-sending-its-sound-waves-into-the_us_58656ceae4b04d7df167d377.
 Sarah Buhr, An Amazon Echo May Be the Key to Solving a Murder Case, Tech Crunch (Dec. 27, 2016), https://techcrunch.com/2016/12/27/an-amazon-echo-may-be-the-key-to-solving-a-murder-case/.
 Christopher Mele, Bid for Access to Amazon Echo Audio in Murder Case Raises Privacy Concern, The New York Times (Dec. 28, 2016), https://www.nytimes.com/2016/12/28/business/amazon-echo-murder-case-arkansas.html?_r=0.
 Zuzanna Sitek, Bentonville Murder Suspect Bonds Out from Jail, KSFM News (Feb. 25, 2016, 4:37 PM), http://5newsonline.com/2016/02/25/bentonville-murder-suspect-bonds-out-from-jail/.
 Buhr, supra note 14.
 Can Amazon Echo Data be Used as Evidence in Murder Case?,CBS News (Dec. 28, 2016, 1:16 PM), http://www.cbsnews.com/news/amazon-echo-data-evidence-in-murder-case/.
 Alfred Ng, Police Request Echo Recordings for Homicide Investigation, CNet Magazine Online (Dec. 27, 2016, 11:53 AM), https://www.cnet.com/news/police-request-echo-recordings-for-homicide-investigation/.
 David Lohr, Amazon Refuses to Comply With Police Request In Arkansas Murder Case, The Huffington Post (Dec. 28, 2016, 7:14 PM), http://www.huffingtonpost.com/entry/amazon-arkansas-murder-case_us_58642d86e4b0eb586488082c.
 Amy B. Wang, Can Alexa Help Solve a Murder? Police Think So — but Amazon Won’t Give Up Her Data, The Washington Post (Dec. 28, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/12/28/can-alexa-help-solve-a-murder-police-think-so-but-amazon-wont-give-up-her-data/?utm_term=.f1cc0d254e06.
 Jake Jones, Amazon Echo Data Sought by Police in Murder Investigation, AOL News (Dec. 28, 2016, 7:33 AM), http://www.aol.com/article/news/2016/12/28/amazon-echo-data-sought-by-police-in-murder-investigation/21643228/.
 Jake Swearingen, Can an Amazon Echo Testify Against You?, New York Magazine (Dec. 27, 2016, 12:02 PM), http://nymag.com/selectall/2016/12/can-an-amazon-echo-testify-against-you.html.
 See e.g., Kim Komando, 3 Gadgets that are Always Listening and How to Stop Them, USA Today (Oct. 2, 2015, 12:21 PM), http://www.usatoday.com/story/tech/columnist/komando/2015/10/02/3-gadgets-always-listening-and-how-stop-them/73191644/.
 In that case, Apple refused to comply, and the FBI paid professional hackers to break into the iPhone.
 Wang, supra note 24.
 Hayley Tsukayama, Amazon CEO Jeffrey Bezos: Debate Between Privacy and Security is ‘Issue of Our Age’, The Washington Post (May 18, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/05/18/amazon-ceo-jeffrey-bezos-debate-between-privacy-and-security-is-issue-of-our-age/?tid=a_inl&utm_term=.d49636bbbbee.
 Arkansas Prosecutors Seek Possible Evidence for Murder From Amazon Echo Device, ABC News (Dec. 29, 2016, 7:57 AM), http://abcnews.go.com/US/arkansas-prosecutors-seek-evidence-murder-amazon-echo-device/story?id=44439545.
 Jill Bleed, Alexa a Witness to Murder? Prosecutors Seek Amazon Echo Data, Yahoo Tech (Dec. 29, 2016), https://www.yahoo.com/tech/alexa-witness-murder-prosecutors-seek-amazon-echo-data-060210000.html.
 Michelle Quinn, Amazon Refuses to Give Echo Data to Police, Following in Apple’s Footsteps, The Mercury News (Dec. 28, 2016, 1:01 PM), http://www.mercurynews.com/2016/12/28/amazon-refuses-to-give-echo-data-to-police-following-in-apples-footsteps/.
 Ryan Matthew Pierson, Police Seek Amazon Echo Recordings to Answer Murder Whodunit, ReadWrite (Dec. 29, 2016), http://readwrite.com/2016/12/29/police-seek-amazon-echo-recordings-in-murder-investigation-dl4/.
 Ashley Carman, Police Want an Echo’s Data to Prove a Murder Case, but How Much Does it Really Know?, The Verge (Dec. 27, 2016, 1:08 PM), http://www.theverge.com/2016/12/27/14089836/amazon-echo-privacy-criminal-investigation-data.
 Billy Steele, Police Seek Amazon Echo Data in Murder Case, Engadget (Dec. 27, 2016), https://www.engadget.com/2016/12/27/amazon-echo-audio-data-murder-case/.
 Elizabeth Weise, Police Ask Alexa: Who Dunnit?, USA Today (Dec. 27, 2016, 3:21 PM), http://www.usatoday.com/story/tech/news/2016/12/27/amazon-alexa-echo-murder-case-bentonville-hot-tub-james-andrew-bates/95879532/.
 Jeff John Roberts, Police Ask Amazon’s Echo to Help Solve a Murder, Fortune (Dec. 27, 2016, 4:18 PM), http://fortune.com/2016/12/27/amazon-echo-murder/.
 Wang, supra note 24. Police noted that once in October 2013, Mr. Bates used a similar amount of water in one hour, but they believe he was completing a reasonable activity such as filling up his hot tub.
 Murder Squad Sought Amazon Echo Data, BBC (Dec. 28, 2016), http://www.bbc.com/news/technology-38450658.
 Ng, supra note 22.
 Andrew Alpert, Cell Phone Tower Data Used in Recent First-Degree Murder Trial in Baltimore Circuit Court, Alpert Schreyer Trial Attorneys https://www.andrewalpert.com/blog/murder/cell-phone-tower-data-used-in-recent-first-degree-murder-trial-in-baltimore-circuit-court/.
 Justin Ross Harris Sentenced in Son’s Hot Car Death, CBS News (Dec. 5, 2016, 2:13 PM), http://www.cbsnews.com/news/justin-ross-harris-sentenced-in-sons-hot-car-death/.
 Ashley Hays, Anthony Trial: ‘Chloroform’ Searched on Computer, CNN (June 8, 2011, 5:16 PM), http://www.cnn.com/2011/CRIME/06/08/florida.casey.anthony.trial/.
 Kim Zetter, Teen Murderer Undone by World of Warcraft Confession and Trail of Digital Evidence, Wired (Nov. 3, 2011, 1:26 PM), https://www.wired.com/2011/11/world-of-warcraft-confession/.
 Nora Crotty, This Rape Case was Solved by a Fitbit, Yahoo (Apr. 22, 2016), https://www.yahoo.com/style/this-rape-case-was-solved-by-a-fitbit-183511752.html.
 Lorraine v. Markel Insurance, 241 F.R.D. 534 (D. MD. 2007).
 Id. at 538.
 Bleed, supra note 35.
 Rossow, supra note 12.
 Kristin Hunt, Amazon Echo Might Hold Key Evidence in a Murder, Mental Floss (Dec. 29, 2016, 1:00 PM), https://mentalfloss.com/article/90422/amazon-echo-might-hold-key-evidence-murder.
 Farhad Manjoo, Amazon Echo, a.k.a. Alexa, Is a Personal Aide in Need of Schooling, New York Times (June 24, 2015), https://www.nytimes.com/2015/06/25/technology/personaltech/amazon-echo-aka-alexa-is-a-personal-aide-in-need-of-schooling.html