Georgetown Law, Class of 2017
The right to privacy is enshrined in the Fourth Amendment and protects individuals, their houses, papers and effects from unreasonable government intrusion. Recent technological developments, however, are fast outpacing Fourth Amendment jurisprudence, blurring the previously clear lines of what actions constitute violations and of what areas are protected.[i] Take, for example, Amazon’s Echo. The hybrid speaker-personal assistant is equipped with “Alexa,” Amazon’s voice recognition platform, and is designed to further boost the convenience of the digital word. Interested in today’s weather? Want to play music? Need to re-order toilet paper? Alexa can handle it – all for the low, low price of your privacy.
To determine whether a government action implicates a Fourth Amendment privacy consideration, courts consider whether there was a reasonable expectation of privacy.[ii] This reasonableness inquiry is divided into two further prongs: (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable.[iii] The framework of several dichotomies took shape to assess actions against these two prongs: private versus public space; personal information versus third-party data; and content versus non-content.[iv] Private spaces, personal information, and non-content tend to indicate an expectation of privacy; public spaces, third-party data and non-content do not.
Amazon’s Alexa poses a serious conundrum with respect to all of these dichotomies, and by doing so, makes the normalization of intrusion possible. First, it is necessary to describe Alexa, and the Amazon Echo, more fully. The Echo is tube-shaped and has seven microphones, enabling Alexa to hear voice commands from across the room. In combination with Alexa’s voice recognition features, the Echo can recognize voices coming from any direction. The Echo also has noise-cancellation features that enable it to hear users while it plays music. Alexa is constantly “listening,” waiting to pick up on a “wake word” that alerts it to a new user request. When Alexa picks up on the “wake word,” it records the inquiry, including a fraction of a second before the “wake word” was used. The recording is then stored in the Cloud. Recordings can be manually deleted, but “may degrade your Alexa experience,” discouraging users from doing so.
Alexa and the Amazon Echo, like many new technologies, erode Fourth Amendment jurisprudence. But by locating itself in the home, Alexa poses a potentially more dangerous problem – normalizing such intrusions on our privacy to the point that privacy is no longer reasonable.
[i] See generally, Laura K. Donohue, The Fourth Amendment in A Digital World, NYU Annual Survey of Am. L. (2016) (forthcoming).
[ii] See Katz v. United States, 389 U.S. 347 (1967).
[iii] Katz, 389 U.S. at 360-61 (Harlan J., concurring).
[iv] Donohue, The Fourth Amendment in A Digital World, NYU Annual Survey of Am. L. (2016) (forthcoming).
[v] Donohue, The Fourth Amendment in A Digital World, NYU Annual Survey of Am. L. (2016) (forthcoming).