With the advent of “smart homes and devices,” we are now in a world once only imagined in science fiction. Our phones now track our every move, contain our internet search histories and record vast portions of our lives through photos, texts, and encrypted messages.  Home security devices and cameras record not only strangers coming to your home, but also you and your invited guests.  Baby monitors, smart kitchen devices like refrigerators, and home devices like Amazon’s Echo, are always on and potentially recording or transmitting.  And therein lies the problem.

Anything attached to the internet – the Internet of Things – can be hacked, intercepted or legitimately recorded.  Since these devices are in the privacy of our own homes or businesses, they have the ability to capture our most intimate and private conversations and actions.

Take for instance, Amazon Echo and similar devices.  It’s fun to ask “Alexa” to answer questions without having to manually search the web on your laptop or smart phone.  Alexa can now order items on Amazon, make dinner reservations, and play requested music.  While these and other devices make our lives easier, there is also the potential for abuse.  These devices are always on and many stream automatically to the cloud.  They can be awoken by your voice, but also by ambient noise.  Thus, they have the potential to record background sounds and voices even when they are in sleep mode and not being asked to perform a task.

Already, police have attempted to obtain these types of recordings in a criminal case.  In 2015 in Bentonville, Arkansas, the police were investigating the suspected murder of a person over a friend’s house.  The homeowner claimed to be asleep when the friend supposedly drowned in the hot tub.  Using modern technology as an investigative tool, the police reviewed the home owner’s cell phone records and discovered usage while the owner claimed to be asleep.  They also examined the owner’s water bill and discovered increased usage around the time of the incident, leading them to believe that the homeowner had washed away evidence of the crime.  And lastly, they tried to obtain information, including potential recordings, of the owner’s Amazon Echo device by issuing a search warrant to Amazon.

Amazon fought the warrant on the grounds that it violated the First Amendment, that a person has a right to browse and purchase materials anonymously without fear of government discovery.  Amazon further argued that Alexa “contains a multitude of data that can reveal much more in combination than any isolated record, allowing those with access to reconstruct ‘the sum of an individual’s life.’”  Before the court could decide this novel issue, the home owner consented to the material being turned over to law enforcement.  Similar cases are sure to follow as these devices become common place.

One must consider Amazon’s own argument in the case, that its device allows the reconstruction an individual’s entire life.  Imagine being recorded whenever you are in the privacy of your own home; that potentially every sound, every conversation is recorded and stored in the cloud.  For law enforcement to plant a “bug”, a listening device in your home, requires a strong showing to a judge of probable cause and special circumstances.  But with these types of smart devices, we may have unwittingly allowed such access to lives.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com