Judge Says Amazon Needs To Hand Over Recordings Created By Murder Victim's Echo Speaker

from the in-every-dream-home,-a-state's-witness dept

New Hampshire investigators will be deposing Alexa in the near future, according to a recent court ruling. The advent of in-home digital, voice-activated assistants has created a wealth of personal recordings law enforcement may now have access to. It's only been a couple of years since we first saw law enforcement attempt to obtain Alexa recordings from Amazon, but as Mike pointed out then, this was going to be the new normal. So the onus is on companies like Apple, Google, and Amazon to give customers more direct control of stored data and recordings.

In this case, prosecutors are seeking recordings made by a murder victim's Amazon Echo speaker. They hope the victim's device captured the attack and the removal of her body. Amazon has issued some boilerplate about "valid legal demands" in response, but it's likely the company won't interject itself into this case.

The key here -- unlike other cases we've discussed -- is that the device belongs to a crime victim, rather than the person who allegedly committed the crime. The short court order [PDF] from the New Hampshire court makes it clear no one but the prosecution is invited to this evidence-gathering party:

After reviewing the motion, the court takes it up and rules on it without waiting for a response from defense counsel, as it appears the defendant would have no standing to assent or object to the State's motion.

Pretty cut-and-dry. The alleged murderer can't object to the search of recordings made by the murder victim's device. Amazon can probably fight the order, but in a case like this, it seems unlikely it will. But maybe it should.

[T]he State's motion to search in lieu of a search warrant is granted.

Law enforcement rarely obtains a warrant to search a crime victim's residence if that's where the crime occurred. It's not that they don't need a warrant to perform this search. It's that the accused criminal usually has no possessory interest in the crime victim's residence and would not be able to challenge the evidence in court.

When it's a murder case, the victim is obviously in no position to challenge the search. But there's a lot of criminal activity that doesn't result in a dead person, so searching someone's house without a warrant just because they were robbed or assaulted still implicates the privacy granted to them by the Fourth Amendment. The judge here is allowing a warrantless search because there's no one to object to the search, not because it's necessarily completely legal to perform a warrantless search in this sort of situation. This paper [PDF] from the Federal Law Enforcement Training Center points out the US Supreme Court has rejected a "murder scene" warrant exception three times over the last 40 years, and yet many in law enforcement believe such an exception exists.

[T]he courts have outlined a number of “established and well-delineated” exceptions to the warrant requirement of the Fourth Amendment, including, but certainly not limited to, consent searches; searches of vehicles; searches incident to arrest; and inventory searches. However, one exception to the warrant requirement which the Supreme Court has expressly and repeatedly refused to recognize is a general “murder scene” exception. Even so, in speaking with numerous Federal law enforcement officers, many of whom have a state or local law enforcement background, it appears that a misconception regarding this point continues to exist. Most of those with whom I have spoken believe that such an exception is alive and well, and that in the course of investigating a homicide, no warrant is required to “process” the crime scene.

If Amazon wants to challenge it based on those grounds, it can try. But it also may not have the standing to challenge the warrantless search of this customer's device since it would have little possessory interest in recordings created by customers. But it's worth a shot, if only to remind law enforcement (and this judge) that there's no warrant exception for murder scenes.


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  • identicon
    Anonymous Coward, 14 Nov 2018 @ 10:51am

    If there's an issue the victim's estate has of the recording being turned over by Amazon, they can argue for copyright protection, given it's death + 75 years.

    I wish I were joking, but it's actually valid in this case, as the data is a sound recording.

    Thanks to the instant granting of copyright to works, this could prevent the data being used.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 14 Nov 2018 @ 11:01am

      Re:

      Thanks to the instant granting of copyright to works, this could prevent the data being used

      Amusing thought but this isn't how copyright works. Nothing in copyright law prevents works from being entered as evidence. :)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 1:13pm

        Re: Re:

        Nothing in copyright law prevents works from being entered as evidence.

        More technically, copyright law would prevent the prosecution (or defense) from getting a copy of the recording to play in court. And if it can't be presented to the court, then whether or not it they enter it as evidence is irrelevant. Court proceedings are, however, a classic example of fair use which puts a bit of a damper on this idea.

        reply to this | link to this | view in chronology ]

    • identicon
      Shufflepants, 14 Nov 2018 @ 11:13am

      Re:

      I mean, if the victim isn't granted a copyright for the sounds of their death throes, what incentive will they have to produce new works of the sounds of their own murder in the future?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 12:20pm

        Re: Re:

        Wouldn't the victim have the performance rights with the copyright of the recording of their demise going to Amazon?

        There's a clear market here. A dvd perhaps, a reality dvd of a collection of like recordings. After all, everyone else seems to be doing it.

        reply to this | link to this | view in chronology ]

      • icon
        Vidiot (profile), 14 Nov 2018 @ 1:16pm

        Re: Re:

        And, of course, we couldn't impinge upon the descendants' right to 70 years worth of revenue generation. Thanks, mom!

        reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 15 Nov 2018 @ 4:22am

      Re:

      Recording was by a device, not by a person. No copyright.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2018 @ 9:43am

        Re: Re:

        Kinda hard to record *ANYTHING* without a device recording it.

        reply to this | link to this | view in chronology ]

        • icon
          Coyne Tibbets (profile), 16 Nov 2018 @ 5:25am

          Re: Re: Re:

          It's the difference between attended and unattended. Yes people created Alexa, but Alexa decides based on the algorithms when to record and when not to record. No human intervenes. And the Supreme Court has already ruled that copyrights can only be owned by humans.

          So which human should we say initiated this recording and would own this copyright?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Nov 2018 @ 8:24am

            Re: Re: Re: Re:

            algorithms that react to human input. it's not much different from using a timer or voice commands to control your phone's camera. just because you arent pressing a button at the beginning of the recording doesnt mean it's not your recording

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 10:59am

    Why challenge it?

    If Amazon wants to challenge it based on those grounds, it can try. ... it's worth a shot, if only to remind law enforcement (and this judge) that there's no warrant exception for murder scenes.

    Whom would this benefit? If some innocent member of the victim's household is worried about their privacy, they can challenge it. If only the victim's privacy is at stake, why should Amazon fight? As you say, the supreme court has already clarified the principle thrice. The law is meant to protect the rights of the people, not the ex-people.

    We're talking about a microphone in the victim's home right? The article only talks about ownership, not location or control, and ownership shouldn't matter.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2018 @ 11:10am

      Re: Why challenge it?

      One reason to challenge it would be to discourage the precedent that law enforcement can obtain these recordings while having neither a warrant nor a legally accepted exception to the warrant requirement. Yes, in this case, it's very unlikely that justice would be better served by challenging it than by complying. However, if successful here, this success will almost certainly be cited as precedent when law enforcement wants access to other recordings, especially if those recordings are harder to obtain through established legal channels. (For example, if the recording party had good reason to want the information suppressed, because it incriminated someone the recorder wants to protect, the recording party would fight the seizure. If law enforcement can cite this as precedent to seize the data from Amazon instead, then the recording party's suppression would be irrelevant.)

      Look at what a fight the FBI put up for the San Bernadino iPhone, despite everyone expecting that it was a waste of time. The FBI wanted the precedent that they could demand a form of technical assistance not otherwise required by law. Here, local law enforcement wants access (for a good cause) not required by law. Next time, it may be for a fishing trip not authorized by law.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 12:04pm

        Re: Re: Why challenge it?

        Apple helping with the San Bernadino iPhone case would have weakened everyone's security. That's not the case here, as long as Amazon's clear that recordings of a dead person are a special case. It can't create true precedent when a higher court has ruled the other way strongly and repeatedly.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 12:59pm

        Re: Re: Why challenge it?

        Exactly.

        This week it's a murder investigation...next week it would be a suspected terrorist, then a drug dealer, etc...

        Our government has repeatedly demonstrated it's absolute willingness to cannonball down the slippery slope instead of treading lightly.

        Getting a search warrant in a case like this would be trivially easy and pretty much rubber stamped, but law enforcement continues to view the Constitution as a hindrance to their jobs.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2018 @ 4:13pm

          Re: Re: Re: Why challenge it?

          This week it's a murder investigation...next week it would be a suspected terrorist, then a drug dealer, etc...

          I get your point, but when we're fighting for rights we agree don't matter (at least, nobody has said why a dead person's privacy should be protected) just so the government can't gain any ground... that's gotta be a sign there's something very wrong.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 Nov 2018 @ 4:17pm

            Re: Re: Re: Re: Why challenge it?

            "I get your point, but when we're fighting for rights we agree don't matter (at least, nobody has said why a dead person's privacy should be protected) just so the government can't gain any ground... that's gotta be a sign there's something very wrong."

            That's the danger of the slippery slope known as precedent. Once it's established it's virtually impossible to retract.

            reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 14 Nov 2018 @ 4:32pm

          Re: Re: Re: Why challenge it?

          Coming up:

          Police want to search a place without a warrant?
          Just shoot the next brown person they see on the property.
          BOOM! Now it's a crime scene and they can tear it up all they want to.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2018 @ 11:22am

      Re: Why challenge it?

      Because if you let governments avoid search warrant requirements, they will go on fishing expeditions, like what happen whenever anybody flies within the united states.

      reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 14 Nov 2018 @ 12:00pm

      Re: Why challenge it?

      Well from Amazon's perspective this ruling could be interpreted by others that the police can get a warrant at any time to listen in on what their Alexa hears. And who knows who Amazon is selling access to everything Alexa hears?

      And then what about other government agencies accused of doing stuff without warrants, like the NSA? Would you want a listening device in your home that the government can also listen in to?

      And then having the reputation as the company who will just roll over and hand your data to the government could put them at a competitive disadvantage to companies like Apple. Apple has been publicly involved in court fights for encrypting their customer's data on their devices, and not putting in backdoors to crack it for the government.

      This very lawsuit proves that Alexa's data is NOT encrypted and Amazon can hand it over to anyone they want at any time.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 1:09pm

        Re: Re: Why challenge it?

        Would you want a listening device in your home that the government can also listen in to?

        Ordinarily no, but I feel that were I in the process of being murdered I might even want a publically-viewable camera there.

        The last sentence of your post is the important one. Amazon has the power to decide what's public, not me, which is why I wouldn't ordinarily want it. Encryption doesn't matter. If Amazon can decrypt, the encryption is useless to me. If they can't decrypt, the data is useless to them.

        reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 14 Nov 2018 @ 1:04pm

      Re: Why challenge it?

      > Whom would this benefit? If some innocent member of the victim's household is worried about their privacy, they can challenge it. If only the victim's privacy is at stake, why should Amazon fight?

      One of the government's favorite arguments is that people don't have the legal standing to challenge it's actions. You could bet on that being their very first argument in a case where somebody in the household challenged it based upon their privacy concerns.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 4:15pm

        Re: Re: Why challenge it?

        You could bet on that being their very first argument in a case where somebody in the household challenged it based upon their privacy concerns.

        Well, yeah. I'll bet they're gonna do that anyway, even if Amazon win here (which would only be reaffirming a thrice-Supreme-Court-affirmed precedent).

        reply to this | link to this | view in chronology ]

      • icon
        Coyne Tibbets (profile), 15 Nov 2018 @ 4:49am

        Re: Re: Why challenge it?

        It is more than that, it is a Fourth Amendment concern if the household contains more members than the victim.

        For example, say Bob was murdered. The government gets a subpoena for Alexa's recordings looking for evidence in Bob's case.

        Housemate Joe didn't wasn't involved in the murder, but he was doing child pornography and the recording contains evidence of that. Joe is arrested and charged.

        Can Joe challenge the evidence as a violation of his Fourth Amendment Rights? You know the government is going to assert that he cannot, because the evidence against him was discovered "incidental" to the investigation into Bob's murder.

        And that case might be a little gray, but what about as the subpoena ratchet works its way down toward getting recordings for crimes like, say, Bob's out of household drunk driving?

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 14 Nov 2018 @ 12:25pm

    I felt Amazons position was always, get a court to tell us to.

    Given the grandstanding by AG's demanding this & that, sending threatening letters, & other malfeasance by cops, having an offical document signed off by a court gives them plenty of ass coverage.

    Congress lacks the intelligence to pass a law updated to cover cell phones... we expect they will suddenly notice Alexa?

    Amazon wants a clear pattern to be followed, that a court order needs to be issued rather than requests or demands, so that the next bright cop doesn't look at the case and say... Oh they gave up the data with just a demand... lets tap into what the suspects Alexa is recording in their home...

    reply to this | link to this | view in chronology ]

    • icon
      Bamboo Harvester (profile), 14 Nov 2018 @ 12:56pm

      Agreed

      I don't see how an offsite, "remote" recording requires a Warrant - it should be a Subpoena item.

      Which you don't get by shopping a "friendly" judge.

      But the fact that it's been publicized because of this action is a good thing - maybe (yeah, right...) people will wake up to the fact that those damned things listen ALL the time, and keep a recording of everything as well.

      You've gotta be insane to use that kind of "service".

      reply to this | link to this | view in chronology ]

      • icon
        Killercool (profile), 14 Nov 2018 @ 1:39pm

        Re: Agreed

        ...No, they don't keep a recording of everything. Amazon (and Google) are very open and clear about how the devices work: they do listen all the time (that's literally the point), but they only record in seconds-long bursts. Each "chunk" is analyzed for a "wake word," like "Alexa" or "Hey, Google." Only after the wake word is recognized will any audio be streamed to the actual service. The analysis and "chunk" recording is all done within the device.

        Unless the murder victim asked Alexa to call 911 (or the murder-noises were reasonably similar to it), there won't be a recording to find. Unfortunately for this victim, no one is interested in paying the cost of storing the random noises and boring conversations that occur around your house.

        There are many security firms with a vested interest in proving otherwise, since that would help them sell their "Alexa Protection Plan," but it's just not true.

        Sorry. Amazon and Google don't care what you say unless you ask them to.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 Nov 2018 @ 4:20pm

          Re: Re: Agreed

          Sorry. Amazon and Google don't care what you say unless you ask them to.

          They haven't actually promised to delete that data, have they? My understanding is that they can save it for a week, a year, whatever, at their option; hell, if they find your voice "interesting" in some way (good for training their algorithms), does anything prevent indefinite storage?

          The paranoia is overblown but to say "there won't be a recording" might be overly optimistic.

          reply to this | link to this | view in chronology ]

          • icon
            Killercool (profile), 14 Nov 2018 @ 5:56pm

            Re: Re: Re: Agreed

            Until you trigger your device, there is no recording to keep. Unless the victim triggered the Echo, either intentionally or not, nothing streamed to Amazon for them TO keep.

            All your questions about Brazilian fart porn? They have those, but not the sounds of you using it. Well, unless you called out to your invisible girlfriend in the throes of... passion?

            Tell you what- if they find recordings at Amazon of the victim's struggle for life? Unless she asked Alexa to help, I will record and post a video of me destroying my phone.

            Because it's stated outright in the terms of service and description of how it works that that DOES NOT HAPPEN.

            And if it is happening, I don't want that shit in my house.

            reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 15 Nov 2018 @ 8:43am

          Re: Re: Agreed

          Thanks, I figured it was impossible for them to store 24/7 audio from every Alexa device ever sold, unless they have a data center the size of Missouri that I haven't heard about.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2018 @ 1:06am

        Re: Agreed

        maybe (yeah, right...) people will wake up to the fact that those damned things listen ALL the time, and keep a recording of everything as well.

        Listen yes, but they do not send to the mothership all the time, as would be very noticeable with bandwidth caps and excess data charges. Also most of the devices supporting these assistants have limited local storage, and having it fill up would be very noticeable.

        reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 14 Nov 2018 @ 1:26pm

    Get A Fscking Warrant

    It has been written by numerous judges on numerous occasions, and it should happen here.

    There's tons of probable cause for a cop to spend an hour typing up a warrant and getting it signed by a judge.

    The murder victim can't really consent or not but does have a possessory interest and should have standing to object.

    reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 14 Nov 2018 @ 1:44pm

      Re: Get A Fscking Warrant

      If murder isn't good enough to get a warrant, what the hell is the cop doing wrong?

      And sometimes a dead body, in plain sight, still needs a warrant to be gotten for the cops to go inside a house.

      Well, if the cop actually cares about the Fourth Amendment. Or at least cares about losing a whole case because they didn't have it.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 15 Nov 2018 @ 8:44am

      Re: Get A Fscking Warrant

      The murder victim can't really consent or not but does have a possessory interest and should have standing to object.

      Dead people do not have any kind of legal standing.

      reply to this | link to this | view in chronology ]

  • identicon
    Flapper, 14 Nov 2018 @ 1:52pm

    Fourth Amendment

    4th (or any other amendment) doesn't apply to the Dead. Dead folks have no constitutional rights.

    reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 14 Nov 2018 @ 2:09pm

      Re: Fourth Amendment

      The property belongs to their next of kin, or maybe even their landlord. The folks that can claim their estate DO have constitutional rights, and they might even be infringed upon, seeing as how it's not that uncommon for people to visit relatives.

      Just because someone else used to own my stuff, doesn't mean that the cops can rifle through it without due process.

      I mean, damn. All they would have to do is ask permission from the current owner. Who doesn't want to help the police find their relative's (or tenant's) killer?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Nov 2018 @ 4:24pm

        Re: Re: Fourth Amendment

        Just because someone else used to own my stuff, doesn't mean that the cops can rifle through it without due process.

        This isn't "stuff" they'd be looking through, it's an online account. Are these considered property that pass to next of kin or by the will? What if the recipient already has an account and the terms prohibit multiple accounts, as with Facebook?

        I mean, damn. All they would have to do is ask permission from the current owner.

        I think that's legally risky unless we're sure account ownership passes on like that. It could get evidence thrown out.

        reply to this | link to this | view in chronology ]

        • icon
          Killercool (profile), 14 Nov 2018 @ 6:12pm

          Re: Re: Re: Fourth Amendment

          Well, they're already trying to get it without a warrant. Are they worried about it getting thrown out?

          Why didn't the judge just issue either a warrant or subpoena?

          A warrant would remove a lot of the questionability of conducting a search, and a subpoena would simply tell Amazon to hand over any recordings they had.

          The insistence on a "search in lieu of a search warrant" is the problem.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 2:25pm

    Just get the warrant

    Amazon should challenge this warrant less request only because the burden of providing the recordings rests on Amazon. I find it hard to believe that Amazon is going to challenge a warrant. If the prosecutor could just use the Echo in the victims house to retrieve the recording this issue most likely not be brought up.

    Since the judge already said that the defense does not have to be consulted, what is so hard about the judge just signing the warrant for the recording? I am not a lawyer, so that is a serious question, how long would it take the court to prepare that warrant?

    At least with the warrant in place, the whole process is nice and neat for Amazon. I would think that the prosecutor calling Amazon and asking for the recording without a warrant would have to run through Amazon's legal office as it would cause confusion and this would create a much longer delay than Amazon being presented with a warrant in the first place.

    When I have to deal with government agencies, I don't wait for them to tell me to submit X, Y & Z, I just do it up front because I know the process will go smoother. So, why in the world would the prosecutor not just get the warrant, present it to Amazon and get the recording?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 14 Nov 2018 @ 2:50pm

      Re: Just get the warrant

      So, why in the world would the prosecutor not just get the warrant, present it to Amazon and get the recording?

      One word: Precedent.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 2:39pm

    I can't imagine why anybody would put one of these in their house. Essentially its an internet connected bug subject to hacking.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2018 @ 4:30pm

      Re:

      Ever see those "has this ever happened to you" infomercials, that blow some trivial/unlikely problem out of proportion? They remind me of that. The "smart speakers" might be great in exceptional cases, like for the disabled, but otherwise it saves you the minuscule inconvenince of typing and reading. As you say, there's some risk, but if anyone has a cell phone turned on in your house—keeping in mind that unless you've pulled the battery or put the phone in a soundproof faraday cage it should be considered "on"—you've got that risk anyway.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 14 Nov 2018 @ 2:49pm

    Fishing for precedent

    Given the facts of the case I'd say it's a safe bet that any warrant application for the data in question would be trivial to write up and even easier to get, so the fact that they apparently didn't do that has me suspecting that this is yet another case where they're trying to get a precedent allowing them to bypass the requirement for a warrant for a search.

    Have a badge and want to engage in a search? Get a warrant. If you can't be bothered then you're too lazy, to incompetent, or both both lazy and incompetent, and in any of those you aren't fit for the job. On the other hand if the evidence you have isn't sufficient to get a warrant, then odds are good you don't have enough to engage in the search in the first place.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2018 @ 3:16pm

    In related news ..... Alexa records everything.

    Possibly, there should be a warning on the package visible before purchase that clearly states everything it hears will be recorded.

    reply to this | link to this | view in chronology ]

    • icon
      Killercool (profile), 14 Nov 2018 @ 5:47pm

      Re:

      Yes, it records everything... in 1- or 2-second blocks, which it listens to for "Alexa", then immediately erases, because there is very little memory either in the Alexa device, or allotted to the program on your phone/tablet.

      Nothing is kept unless you say the "wake word." Anything you say after the wake word is said is streamed to Amazon for analysis (and stored, maybe permanently). Until that point, even though everything is recorded, nothing is kept. Amazon has neither the interest or money to keep your conversation about the texture of your toilet paper, unless you ask Alexa to order some more.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    bhomsingh, 15 Nov 2018 @ 12:50am

    Re: Fourth Amendment

    I don't see how an offsite, "remote" recording requires a Warrant - it should be a Subpoena item.

    Which you don't get by shopping a "friendly"

    reply to this | link to this | view in chronology ]


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