In George Orwell’s classic dystopian novel 1984, every house is equipped with a “Telescreen,” a monitoring device enabling government surveillance. Amazon is trying to prevent its Echo/Alexa from turning into just that.
Amazon is hoping to keep its Alexa devices from being a tool of government “listening,” potentially inhibiting people from buying them. Accordingly, the Seattle-based company has filed a motion to prevent recorded audio from an Echo from being used as evidence in a criminal trial.
Last year police in Arkansas sought to obtain recordings captured by Echo as evidence in a 2015 murder case. The Echo in question belonged to the defendant. The murder victim was found in the defendant’s house. Police believe Alexa may have captured evidence of what happened. (Alexa is always listening even when it’s not actively responding to queries.)
Amazon has sought to quash the government search warrant seeking the audio recordings. While Amazon provided the police with subscriber and purchase history information it has vigorously argued that Any Alexa audio should be excluded under the First Amendment.
In an extensive argument (below), Amazon argues that Alexa interactions are protected free speech. That includes both the human speech commands and the AI/robot responses. Interestingly, Amazon cites Search King v. Google for the proposition that Alexa responses are like search results and entitled to the same editorial protections accorded Google under that ruling and related case law:
In addition to the recordings of user requests for information, Alexa’s responses are also protected by the First Amendment. First, as noted above, the responses may contain expressive material, such as a podcast, an audiobook, or music requested by the user. Second, the response itself constitutes Amazon’s First Amendment-protected speech. In a similar context, courts have recognized that “the First Amendment protects as speech the results produced by an Internet search engine.” Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). Alexa’s decision about what information to include in its response, like the ranking of search results, is “constitutionally protected opinion” that is “entitled to ‘full constitutional protection.’”
Amazon isn’t arguing that the government should never be able to access Alexa recordings. Rather, it argues that the government must show a compelling need for the information, beyond the fact that it simply exists. The company says that without clearing that higher bar, free speech would be “chilled” for Alexa-device owners:
Such government demands inevitably chill users from exercising their First Amendment rights to seek and receive information and expressive content in the privacy of their own home, conduct which lies at the core of the Constitution. To guard against such a chilling effect, this Court should require the State to make a prima facie showing that it has a compelling need for any recordings that were created as a result of interactions with the Echo device, and that the State’s request bears a sufficient nexus to the underlying investigation.
While the notion of an AI robot having free speech rights may sound creepy, the Search King case and related law arguably establish such a proposition.
Amazon’s First Amendment argument for Alexa interactions is therefore reasonable and probably legally sound. It’s also an argument Amazon doesn’t want to lose; because it would turn Alexa into a surveillance device for the government — and that would chill sales.