Tagged: legitimate expectation of privacy

Amazon Echo and Privacy Issues: What You Can Say Can Be Used Against You

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The Amazon Echo, a “smart speaker” device responsive to voice commands, was one of Amazon’s best selling products this holiday season. With millions sold worldwide, the Echo, and other similar “smart home” products, are becoming mainstays in any tech-savvy home. But while the Echo has many uses – it streams music, reads audio books, tells the weather forecast, and syncs to nearly any other electronic device you can think of – it is also potentially causing serious privacy concerns. Strangely enough, a murder case in Arkansas, to which the Echo may have been a “witness,” is bringing the issue of “smart” devices and privacy to the forefront of criminal and constitutional law.

In 2016, the body of Victor Collins was found floating in a hot tub at a friend’s home in Arkansas. The friend, James Andrew Bates, was charged with murder. An Echo device was found on Bates’ property, and prosecutors requested the court to compel Amazon to provide data from the Echo that may reveal more information about the events that led up to Collins’ murder. In August 2016, the judge signed a search warrant requesting all “audio recordings, transcribed records, text records and other data” on Bates’ Echo, however Amazon has yet to fully comply. An Amazon spokesperson released a statement that the company “will not release customer information without a valid and binding legal demand,” and it objected to “overbroad or otherwise inappropriate demands as a matter of course.”

Whether Amazon produces the requested data might have far-reaching implications regarding the privacy of the millions of people that use the Echo. As a case of first impression, the issues surrounding this criminal prosecution will set precedent for how future criminal matters will handle the discovery and admissibility of such information.


What Can the Echo Uncover?

The Amazon Echo offers a wide variety of functions by voice command. Responding to the name “Alexa,” the user can ask the device simple questions (such as the weather report) or more involved queries (such as recipe instructions). Once the Echo hears “Alexa” (or another activation phrase set up by the user), it begins to record. The user’s commands or questions are then sent to Amazon’s cloud servers, where the recorded snippet is run through a speech-recognition neural network. At that point, a response to the user’s command or query is sent back through the Echo. Amazon keeps all of the recordings of the user’s questions and commands. However, audio is only saved after the keyword – usually “Alexa” – is spoken and triggers the recording device. Users can elect to delete their old voice recordings on Amazon’s website or through the Echo app on their phone. In addition, the Echo has a “hard mute,” which physically disconnects the microphone, making it impossible to record audio.

Amazon does not have a stated policy about how long it holds onto such data. The Echo itself does not have large hard drive space, so only very little information is stored on the actual device. Therefore, the only means of obtaining any pertinent data from the device is through Amazon and its cloud storage.


Constitutional Implications

There are many constitutional implications of such a device being used against a person in a court of law – the first and foremost concern being one’s reasonable expectation of privacy in his home. As most citizens are aware, the Fourth Amendment protects against unreasonable searches and seizures. But what constitutes unreasonable in the case of electronic devices in the home? A search is considered reasonable if the government obtains a valid search warrant and demonstrates probable cause that the search is sufficiently particular. This showing is beyond a mere suspicion and must be based on reasonable grounds. As we have seen in the past decade or so, search warrants for cell phones and social media accounts (i.e., Facebook, Twitter, and Instagram) have composed a large portion of search warrant requests. Some proponents of releasing the Echo’s data would argue that the device is no different than the other electronic devices and applications that have come before it. However, it is important to note that unlike a cell phone or Facebook account, the Echo’s main purpose is not to communicate with others. Rather, it is more autonomous, focusing only on the user’s own commands, queries, and personal home activities. While search warrants usually request cell phone records and Facebook information to ascertain a person’s communications with others, the Echo device is a record of the owner’s communications with himself. To argue a sufficiently particular reason why the Echo would contain incriminating evidence against another is essentially saying opening the door for the discovery of any other form of home monitoring.

If the Echo can solve a murder, many would argue Amazon’s release of such information would be a noble cause. And if the courts can narrow the application of such search warrants so that they are sufficiently particular to the information sought (i.e., a recording of the suspect and victim), then even better. However, the multitude of the Echo’s uses can lead down a slippery slope beyond murder investigation, resulting in unreasonable invasions of privacy. Depending upon one’s tech savvy, some Echo devices are used to regulate nearly every function of the home. For example, the Echo integrates with a variety of other home automation smart devices, which enables the user to control a range of utilities in the home such as lighting, security systems, and electricity. If the Echo is connected to these devices, it can contain vast information that may be used in the prosecution of crimes. Incidentally, in the Bates’ case, information obtained from his “smart meter” showed that he used “excessive amount of water” during the time of the victim’s death. But such circumstantial evidence need not be used only in murder investigations. Potentially, with such information readily available and streamlined to one’s device, an Echo can just as easily expose its owner for far lesser offenses such as meter tampering and illegal cable rigging, just to name a few. Could it get to a point where Echos are routinely sought in civil proceedings as well?

The technological advancements we have witnessed in the past decade alone are astonishing. And understandably so, such innovations may need to be considered for evidentiary purposes in a court of law. Whatever Amazon chooses to do with the Echo’s data will be just the beginning. It is incumbent upon the courts to ensure that production of information is narrowly applied to fit the particular circumstances of the case. Otherwise, the threat of unreasonably invading one’s privacy in the home will become imminent.

Undercover Practices: A Comparison

POST WRITTEN BY: Lissa Griffin, Professor at Pace Law School & Rafael Wolff, Federal Judge in Brazil and SJD candidate at Pace Law School.

A recent editorial and recent articles in The New York Times address the growing use of undercover agents and their necessarily deceptive practices. The New York Times now reports that the use of undercover operations has expanded “with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing….” The justification is the efficiency and cost-savings over traditional investigation through tips, legwork, interviews, search warrants, and surveillance. No probable cause or search warrant is required.

Is such widespread deception part of our culture?

Maybe it’s just one of the choices we have to make given our Constitution. Our historic fear of centralized authority and the accompanying protection of the individual against government intrusion makes some other more overt investigatory techniques unavailable to us. Thus, for example, in the United Kingdom, recent terrorist legislation improved the Government’s ability to investigate and prevent terrorism by extending the permissible periods of pre-charge detention. Imminent terrorist events may now be averted by simply breaking up the terrorism groups, and enhanced questioning can be accomplished early on. Our bill of rights would prevent that. Thus, instead of investigating overtly, we investigate by deception.

Up until now, rules and guidelines have been inadequate. Now, apparently in response to the “Fast and Furious” undercover operation that allowed guns to travel to Mexico, the Department of Justice has  issued internal guidelines designed to “tighten oversight” of undercover operations. Before prosecutors approve of using undercover investigation, they must consider “whether an operation identifies a ‘clearly’ defined objective, whether it is truly necessary, whether it targets ‘significant criminal actors or entities,’ and other factors.” This is good.

So, does Brazil tolerate as much deception as the United States?  Our conclusion remains that Brazil’s statutory limits restrict deception and protect privacy to a much greater extent than do the US due process clause or recent agency guidelines.  Considering the efficiency of undercover operations, but considering the risks to third party privacy and even to the agent’s security, maybe Brazil needs to use more, and the United States less, of this particularly interesting investigative tool.

These articles raise questions about the scope of undercover investigations and about fair investigative tactics by government agents. An instructive comparison can be made between limits on undercover activity in the United States and in another country, for example, Brazil.

In Brazil, the use of undercover agents requires a judicial warrant authorizing the infiltration of a criminal organization. This is expressly stated by Law 11.343/06 (Article 53, I) and Law 12.850/13 (Article 10). A judge may only issue such a warrant if the government establishes: 1) evidence of organized criminal activities or narcotics offenses; and 2) it is impossible to produce the evidence by another less intrusive way (Law 12.850/13, Article 10). Those are both federal laws, as just the Federal Congress can legislate about criminal procedure. Organized criminal activity occurs when there is a criminal organization of four or more individuals that functions in a structured way and with a division of tasks, even informally, to obtain direct or indirect criminal advantage. To be considered a criminal organization, the activity should be punishable by a maximum prison sentence of more than four years. Law 12.850/12 also allows the use of undercover agents and other special investigative tools in case of transnational crime which Brazil is internationally obliged to eradicate (for sure, when the crime occurs in Brazilian soil) and transnational terrorist groups recognized by international organizations in which Brazil is a member.

The use of undercover agents is also legal in the investigation of crimes created by Law 11.343/06, that is, in investigations into narcotics crimes. This category was included by the legislature because of the considerable risk of danger in the organized narcotics business.

In addition, Law 12.850/13 requires that the conduct of the undercover agent be proportional to the goal  of the operation and provides that the agent will be criminally culpable for any excess (art. 13). The same article makes clear that the agent will not be liable if it was not reasonable to act differently in the case.  The legislation is very vague, however, leaving it to the court to fix the limits in the warrant.  For example, it will be the judge who, based on the values prescribed by the Constitution and statutes, will have to decide if it is reasonable to allow an agent to send child porn pictures during an investigation.  This is not an easy call, especially since there is no consistent case law about it.

However, interestingly, Brazil defines “undercover operations” much more narrowly than does the United States so that these strict requirements only apply to certain undercover conduct.  Brazilian statutes (Laws 11.343/06 and 12.850/13) use the term “infiltrated agent” to define the regulated investigative activity, not “undercover agent.”  Thus, the definition only applies to those operations that involve agents assuming false identities to infiltrate criminal organizations. The use of plain clothes officers to buy drugs without the use of a false identification would not be regulated by the statute. In such cases, the need for a warrant is not even discussed in the case law. (STJ, AgRg no AREsp 1.956/SP, Rel. Ministra MARIA THEREZA DE ASSIS MOURA, SEXTA TURMA, julgado em 21/06/2011, DJe 01/07/2011). Thus, the kind of conduct reported in The Times, for example —  the presence of a police officer in the middle of a political protest —  would not be considered conduct by an “infiltrated agent,” as long as a false identity is not used to allow infiltration in a criminal organization. On the other hand, an officer who pretends to be a child to uncover a criminal organization involving pedophilia in the internet, for example, would indeed be subject to the warrant requirement.

From the defense perspective, there is protection against entrapment (article 17 of the Brazilian Criminal Code). For example, a defendant will not be liable for possessing a child porn photo sent by an undercover agent if the court finds the defendant was entrapped. However, this defense will not protect the Defendant if he possesses other photos, for example.

In the United States, of course, police and prosecutorial use of undercover agents is limited only by the broad and permissive boundaries of the due process clause. See, United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). Unlike Brazil, in the United States there is no requirement of a warrant or of judicial supervision of any kind regarding undercover agents. In fact, the Supreme Court has made clear that the use of undercover agents – even when the agent wears a wire – does not constitute a “search” under the Fourth Amendment. Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); and United States v. White, 401 U.S. 745 (1971). As the Court has reasoned, betrayal by ones associates is always a risk, so there is  no  expectation of privacy in those interactions if they involve an undercover agent. Given that there is no “search,” there is no warrant requirement or a requirement even of probable cause or reasonable suspicion to use undercover agents to obtain evidence. Nor are there any statutory limits to the practice. The only limitation is whether an undercover officer’s behavior “shocks the conscience” of the court. Readers will remember the stomach-pumping case that actually did shock the conscience of the Supreme Court. Rochin v. California, 342 U.S. 165 (1952).

The Sixth Amendment right to counsel, which attaches after arraignment, may limit the use of undercover agents – but only after charges have been brought and the defendant has been arraigned. That is because, under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, law enforcement may not contact a defendant without going through defense counsel.

In the United States, now, there is not likely to be a consensus for restricting the use of undercover agents, although the discussion of this issue in the press is interesting. New York Times reports that the use of undercover agents is widening and now extends anywhere from sending fake protesters to demonstrations in front of the Supreme Court to creating false identities for doctors and ministers to investigate welfare or other fraud. Until now, at least, we have balanced our interests in privacy, our separation-of-powers-based willingness to give our prosecutors and police tremendous discretion in law enforcement, and our desire for crime control in favor of discretion and crime control. Brazil’s restriction of undercover intrusions to cases involving organized crime, narcotics, terrorism and other transnational crimes that are the object of international treaties – to seriously dangerous organizational criminal behavior that is – should command our attention. Maybe we should tailor the intrusion to protect against serious criminal conduct while protecting the increasingly shrinking sphere of privacy for the rest of us. Certainly, Brazil’s requirement of a showing that there is no less intrusive means to secure the evidence sought should not be a seriously difficult evidential burden. Given the U.S. courts’ willingness to impose only the most nominal restrictions, the way to do this, of course, would be the way Brazil accomplished it – through legislation.

Know Your Rights!

POST WRITTEN BY: Danielle Petretta (J.D. ’17), Pace Law School

On November 18, 2014, the Criminal Justice Society, Criminal Justice Institute and Alumni Relations Office at Pace hosted Know Your Rights symposium. This event was created by Pace Criminal Justice Clinic students under the leadership of Professor David N. Dorfman.

Students were broken into groups, and each group participated in various skits demonstrating the appropriate responses during police street stops, stop and frisks, car searches, cell phone searches and more. While extremely amusing, the skits were followed by an important presentations during which students addressed legal issues involved in each of the skits. One of the problems is that many people do not know their rights and the available appropriate responses. The students’ skits conveyed the importance of being an informed citizen.

Think of some of the following statements and ask yourself if you know the answer:

  • Did you know that if a police officer approaches and asks you general questions, in a non-accusing manner, and you do not wish to answer, you can choose not to answer and walk away? (though doing so requires a level of courtesy)
  • Did you know that you do not have to consent to a car search without a warrant if a police officer stops your car, and that 80% of people only consent because they are uninformed of their right to refuse? (assuming that the officer does not have probable cause such as seeing drugs or firearms)
  • Did you know that cell phones cannot be searched incident to arrest without search warrant that is signed by a judge?

These are few of the questions that plague our justice system on a daily basis, which is why it is important to be aware of our rights, especially as young students in the midst of a technological revolution.

It is no secret that we live in an era where technology is rapidly changing. However, the law has not yet reached the 21st century, so there are many unsettled situation. In the meantime, our court systems battle these complex issues on a daily basis that arise with the advent of new technology. Think about the issues regarding cell phones searches, GPS devices, computers, social media, etc…. How is the law to handle the use of technology and searches while not infringing on person’s expectation of privacy? This is where the difficulty lies. We know that during a car stop, a police officer is allowed to search whatever is in plain view. On the other hand, what is the protocol for searching a computer that is left open and unattended? A cell phone that is seized? Can information found on social media websites be used against a person, and if so, how? What if the social media site is set to private? Do levels of privacy differ on the Internet? Should the same procedures currently applied in searches of cars, houses or people be applied to technology? These are some of the questions presenting much difficulty in articulating new laws.

For now, Riley v. California, decided just this year, is the only precedent we have regarding cellphone searches incident to arrest. An officer may seize a cell phone from an individual after his/her arrest, but may not open the phone or search through the phone without a valid search warrant. Here is an interesting excerpt from the Supreme Court decision: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos” Riley v. California, 134 S. Ct 2473, 2478 (2014). It is clear that new law is warranted, but it must be balanced against our expectation of privacy.

The Know Your Rights event was an eye opener. It would be interesting to see how this event can be incorporated into the public or in other schools, perhaps even high schools. I think it would be an extremely informative and fun experience for young adults to become informed about what is unfolding around them. Personally, I was made aware of the consequences of the technology that we as a society have become so obsessed with and reliant on, while also realizing that the courts face a huge task of creating new laws addressing these new issues. I would urge everyone to become informed not only as to their own rights but also about what is currently being debated in our courts, because we will be the ones who will become affected in the future by the laws that are being created at this moment.

For your convenience, take a moment to begin and read the Know Your Rights! Top Ten Takeaways compiled by Professor David N. Dorfman.