'Alexa, Pick an Amendment': A Comparison of Fourth and First Amendment Protections of Echo Device Data

Abstract

Amazon echo devices, called “Alexa” after the word used to “wake” the device, are becoming fixtures in every home. Potentially protected data is created when the user speaks to Alexa to purchase an item from Amazon, to search the internet, or to access music and book libraries. Alexa’s responses are also recorded by transcript. This data is stored on Amazon’s servers and can be accessed any time by the Alexa owner via the owner’s Amazon account. On December 4, 2015, a warrant was obtained and later served on Amazon requiring Amazon to turn over an Alexa owner’s data as part of a police investigation after the owner became a murder suspect. Amazon filed a motion to quash, citing First Amendment protections, but ultimately the matter was never adjudicated because the Alexa owner voluntarily turned the data over himself.

Questions regarding constitutional protections of Alexa data will surely surface again: Is Alexa data protected under the First Amendment? Is it protected by the Fourth Amendment? Which amendment protects it better? This Article will examine case law to answer these questions. The Article explains how Alexa data is created and stored, compares Fourth Amendment and First Amendment protections of Alexa data, considers weaknesses in constitutional protections, and proposes creating information fiduciaries to enhance the Fourth Amendment protection.

Keywords: Amazon Alexa, echo device data, Fourth Amendment, electronic data privacy protection, First Amendment protection of electronic data, third party doctrine, information fiduciary

JEL Classification: K00, K1, K10,K14, K19, K2, K41,K42, K4, K40, O3, 033, 035, O32