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Can Your Smart Home Speaker Be Subpoenaed?


One of the most popular tech additions to many homes is a smart home speaker with a digital assistant. The two most popular are Google Home and Amazon Alexa, which come in a variety of shapes and sizes for people of different budgets. While these speakers can make life much easier and even give you control over various systems in your home with nothing more than your voice, they’ve rightfully raised a number of privacy concerns among many people.

This is because in order for these speakers to work, they are constantly listening for an audio cue that triggers them to “wake up” and listen for a command to execute. While both Google and Amazon insist that these speakers are not recording unless you specifically activate them, there have been several instances in the past where speakers have recorded audio from inside homes without their knowledge. Many people are concerned that this feature could be used a wiretap, and that audio recordings from these speakers could be used against you.

And to make matters worse, according to Richard Forno from Stanford Law School’s Center for Internet and Society, these devices “aren’t designed with security in mind.” He added “Anything smart usually means it’s being smartly used against you,” whether it’s to improve advertising targeting, or to obtain evidence of possible criminal conduct.

What If You’re Accused of a Crime?

The big question that many people have is whether or not the audio recordings from your Amazon Alexa or Google Home can be obtained by law enforcement, and if so, what barriers are they required to overcome? Late last year, a judge in New Hampshire ordered that Amazon Echo (the name of the Alexa-based speaker) recordings be turned over to be used as evidence in a double-homicide case. Amazon initially declined to turn them over, citing that authorities needed to obtain a valid legal demand before they would do so. In 2015, a similar instance occurred where authorities sought an Arkansas man’s Amazon Echo recordings to try and shed light on the mysterious death of another man in his hot tub.

The devices themselves are not infallible, either. In fact, Google even admitted in 2017 that their Google Home Mini devices had been accidentally spying on their users, 24 hours a day because of a technical bug with the hardware used in the “activate” button on the touchpad. Google has since rectified the issue by disabling the button via a software update, but this is far from the only instance of people discovering that their smart home speakers were recording them without their knowledge or activation.

As for actually accessing these recordings, so far Amazon and Google have been pretty consistent about refusing to turn over this audio data without a proper legal demand, usually in the form of a search warrant. Search warrants require a substantial burden of proof in order for a judge to grant one, including what law enforcement expects to find, where they expect to find it, when they plan to execute the warrant, and much more. However, warrants are granted regularly, and there’s a good chance any recorded data that has not been deleted can and will be accessed and then used against you as evidence in a court of law.

However, privacy protection isn’t nearly so robust when it comes to metadata, or information about a user’s relationship with a platform. Do you have a particular brand of milk that you prefer? How often do you buy your milk? How many times do you open your refrigerator per day? These are all things that “smart” devices can track and use “against” you. In most cases, this data is used to tailor advertising toward you, such as asking you if you want to buy another carton of your favorite milk.

The standard of proof on this data is significantly lower than audio recordings, and can be accessed by nothing more than a subpoena, and while it may not provide direct evidence of what was said in a home, it can provide valuable information as to living habits or interactions that someone has had with a platform. For example, if you claim that you weren’t home on a particular night, but there’s a record of you ordering a pizza from home, then you may have some explaining to do.

If you’ve been accused of a criminal offense, don’t hesitate to reach out to an experienced Bergen County criminal defense attorney for help as soon as possible. Contact the Law Offices of Joseph R. Donahue, LLC at (201) 574-7919 today to schedule a consultation.
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