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Jun 13

ALEXA! Are you listening?

Posted by Derek Casey on Thursday, June 13, 2019

Voice-activated personal digital assistants such as Amazon's Alexa and Apple's Siri are becoming commonplace. These assistants are usually found in "smart speakers," a comparatively small, wireless network device that responds to voice commands after recognition of a pre-programmed “wake word”. “Alexa” is the digital assistant in Amazon's Echo speaker, just as “Siri” operates on Apple's iPhone format and “Cortana” is found on Microsoft devices.

Personal assistant devices are used primarily to stream audio, manage lists, set reminders, retrieve information, and control other connected devices such as lights, thermostats, appliances and door locks. Personal assistant

devices are used primarily to stream audio, manage lists, set reminders, retrieve information, and control other connected devices such as lights, thermostats, appliances and door locks. Obviously, these devices can be very handy when you want to know the time, temperature, get directions, make a quick telephone call or just listen to Taylor Swift’s new hit single. Some users now find these devices to be essential to their lives. The assistants, however, do present privacy concerns for individuals andsome businesses because they are always “listening” for the “wake word”and, in some instances, uploading audio data.

Although the assistants are programmed to respond to the "wake word",these devices are generally always "on" and may unexpectedly stream audio to the cloud. For example, in Alexa's Terms of Use, Amazon states: "Alexa streams audio to the cloud when you interact with Alexa." If you follow the Terms of Use link to Amazon's FAQ's, Amazon states that Alexa does not record all conversations (but must record some) and "[n]o audio is stored or sent to the cloud unless the device detects the wake word (or Alexa is activated by pressing a button)." So, if Alexa hears its "wake word" it will record and upload some unknown amount of audio data to Amazon. Many times you can find these “unexpected” recordings being uploaded to your Alexa or other compatible App. Think about the potential statement: “Unless a person had accidentally arrived, she’d be dead now!” What if this statement is recorded and uploaded because the artificial intelligence inherent to the personal assistant hears “Alexa person had accidentally arrived, she’d be dead now.”

Be aware. A confidential conversation in a room with a voice-activated digital assistant may result in private conversations being recorded and uploaded to a third-party service provider. This raises a question as to whether inadvertently uploaded audio should be subject to discovery in litigation. Several recent criminal cases have allowed the prosecution to access audio incidentally recorded by smart speakers and they can certainly be used in pre-authorized surveillance. But what about accidentally recorded conversations about confidential business plans? Does a device owner have a duty to inform persons in the presence of a smart speaker that the device is "on" and may be uploading audio? What about attorney-client communications? Would a recording device uploading conversations strip confidentiality and remove the attorney-client privilege?

TWG does not yet have answers to all these questions, but the issues seem inevitable within the next few years. Judges in several criminal cases have already indicated that incidentally recorded data is subject to discovery. Any user of a smart speaker with a voice-activated digital assistant should read the device's terms of use to carefully understand how the device is activated and what triggers it to upload data. Most of these devices also have settings that can be modified to restrict the device's activities such as recording and uploading audio and other data. Confidential communications - whether personal, business, or legal - should not be conducted in the presence of such a device if there is an expectation of privacy. In the meantime, guests at your home or business should be made aware of the presence of the device to avoid surreptitious recordings without consent, which in some locales, may be illegal.

These small, unobtrusive devices will likely become ubiquitous and may be listening in areas where least expected. The ability to record yourself and others - intentionally and unintentionally - is becoming more and more common. We should all be aware that these devices may be recording our statements even in locations we previously considered to be “private” and take reasonable precautions to maintain confidentiality when required. In the meantime, at least we should acknowledge the potential consequences next time we say, “Alexa, let’s play Jeopardy!


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