One of my partners sent his CNN piece my way the other day. Long story short, a prosecutor in Bentonville, Arkansas is having trouble with Amazon in his effort to obtain data from an Amazon Echo smart speaker. The case potentially raises some new privacy issues, but it may very well be that existing precedent is on the prosecutor’s side.

A man named James Bates invited two friends to his place in November, 2015. The guys watched some football, drank some beer and did vodka shots. They later sat in Bates’s hot tub. Bates went to bed and woke the next morning to find one of the guests – Victor Collins – floating face down in the hot tub.

Although Bates claims the drowning was an accident (Collins’ blood alcohol content was .32 – four times the legal limit), prosecutors contend there were signs of a struggle. One piece of evidence of interest is the Amazon Echo device at Bates’s apartment. The device allows users to turn lights and switches on with a  voice command, so it is in constant listening mode.  So it’s possible that if there was a struggle, the Echo device would capture it. But that recording would not be on the device itself, but rather it is stored on the cloud. Hence, the prosecutor’s need to get the data from Amazon.

Amazon’s objection is that the request is somehow “overly broad” and constitutes a privacy invasion. I’m not sure I’m seeing that.

The request hardly seems “overly broad” – it’s looking for a recording made on a specific day during a specific time frame. And as to the privacy concern, that’s why the prosecutor needs a warrant. The United States Supreme Court ruled in the 2014 case of Riley v. California that police needed a warrant to search the contents of a criminal suspect’s cell phone. In that case, the police confiscated and searched the phone as an incidental part of an arrest. The police argued the cell phone was no different than a wallet or a briefcase – items that police can search without a warrant as part of an arrest. The Supreme Court, however, recognized the privacy interest in data stored on a smart phone. To protect that interest, the police must obtain a warrant.

In the Echo case, it’s not like the prosecutor is asserting the right to search the data with no warrant. He is running into a road block even with a  search warrant in hand. There is, I suppose, an argument that the Echo user doesn’t realize that the device has the capability to record to the extent it does, but that seems like a thin justification to withhold potential evidence of a crime.  Amazon certainly has the right to advocate for its customers’ privacy, but this may be an uphill fight.

Interestingly, the Echo was not the only smart device used in the investigation. Apparently Bates had a smart device on his water heater, which apparently showed that an unusually large amount of water was used in the early morning hours. Police believe that is evidence that Bates attempted to clean up the crime scene. Bates’s lawyer claim the amount of water used was not extraordinary.

In any event, the case demonstrates the flip side of smart devices. They offer great convenience, but in the words of Rockwell – “Somebody’s Watching [You].”