Category: Trials

Amazon Echo and Privacy Issues: What You Can Say Can Be Used Against You

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The Amazon Echo, a “smart speaker” device responsive to voice commands, was one of Amazon’s best selling products this holiday season. With millions sold worldwide, the Echo, and other similar “smart home” products, are becoming mainstays in any tech-savvy home. But while the Echo has many uses – it streams music, reads audio books, tells the weather forecast, and syncs to nearly any other electronic device you can think of – it is also potentially causing serious privacy concerns. Strangely enough, a murder case in Arkansas, to which the Echo may have been a “witness,” is bringing the issue of “smart” devices and privacy to the forefront of criminal and constitutional law.

In 2016, the body of Victor Collins was found floating in a hot tub at a friend’s home in Arkansas. The friend, James Andrew Bates, was charged with murder. An Echo device was found on Bates’ property, and prosecutors requested the court to compel Amazon to provide data from the Echo that may reveal more information about the events that led up to Collins’ murder. In August 2016, the judge signed a search warrant requesting all “audio recordings, transcribed records, text records and other data” on Bates’ Echo, however Amazon has yet to fully comply. An Amazon spokesperson released a statement that the company “will not release customer information without a valid and binding legal demand,” and it objected to “overbroad or otherwise inappropriate demands as a matter of course.”

Whether Amazon produces the requested data might have far-reaching implications regarding the privacy of the millions of people that use the Echo. As a case of first impression, the issues surrounding this criminal prosecution will set precedent for how future criminal matters will handle the discovery and admissibility of such information.


What Can the Echo Uncover?

The Amazon Echo offers a wide variety of functions by voice command. Responding to the name “Alexa,” the user can ask the device simple questions (such as the weather report) or more involved queries (such as recipe instructions). Once the Echo hears “Alexa” (or another activation phrase set up by the user), it begins to record. The user’s commands or questions are then sent to Amazon’s cloud servers, where the recorded snippet is run through a speech-recognition neural network. At that point, a response to the user’s command or query is sent back through the Echo. Amazon keeps all of the recordings of the user’s questions and commands. However, audio is only saved after the keyword – usually “Alexa” – is spoken and triggers the recording device. Users can elect to delete their old voice recordings on Amazon’s website or through the Echo app on their phone. In addition, the Echo has a “hard mute,” which physically disconnects the microphone, making it impossible to record audio.

Amazon does not have a stated policy about how long it holds onto such data. The Echo itself does not have large hard drive space, so only very little information is stored on the actual device. Therefore, the only means of obtaining any pertinent data from the device is through Amazon and its cloud storage.


Constitutional Implications

There are many constitutional implications of such a device being used against a person in a court of law – the first and foremost concern being one’s reasonable expectation of privacy in his home. As most citizens are aware, the Fourth Amendment protects against unreasonable searches and seizures. But what constitutes unreasonable in the case of electronic devices in the home? A search is considered reasonable if the government obtains a valid search warrant and demonstrates probable cause that the search is sufficiently particular. This showing is beyond a mere suspicion and must be based on reasonable grounds. As we have seen in the past decade or so, search warrants for cell phones and social media accounts (i.e., Facebook, Twitter, and Instagram) have composed a large portion of search warrant requests. Some proponents of releasing the Echo’s data would argue that the device is no different than the other electronic devices and applications that have come before it. However, it is important to note that unlike a cell phone or Facebook account, the Echo’s main purpose is not to communicate with others. Rather, it is more autonomous, focusing only on the user’s own commands, queries, and personal home activities. While search warrants usually request cell phone records and Facebook information to ascertain a person’s communications with others, the Echo device is a record of the owner’s communications with himself. To argue a sufficiently particular reason why the Echo would contain incriminating evidence against another is essentially saying opening the door for the discovery of any other form of home monitoring.

If the Echo can solve a murder, many would argue Amazon’s release of such information would be a noble cause. And if the courts can narrow the application of such search warrants so that they are sufficiently particular to the information sought (i.e., a recording of the suspect and victim), then even better. However, the multitude of the Echo’s uses can lead down a slippery slope beyond murder investigation, resulting in unreasonable invasions of privacy. Depending upon one’s tech savvy, some Echo devices are used to regulate nearly every function of the home. For example, the Echo integrates with a variety of other home automation smart devices, which enables the user to control a range of utilities in the home such as lighting, security systems, and electricity. If the Echo is connected to these devices, it can contain vast information that may be used in the prosecution of crimes. Incidentally, in the Bates’ case, information obtained from his “smart meter” showed that he used “excessive amount of water” during the time of the victim’s death. But such circumstantial evidence need not be used only in murder investigations. Potentially, with such information readily available and streamlined to one’s device, an Echo can just as easily expose its owner for far lesser offenses such as meter tampering and illegal cable rigging, just to name a few. Could it get to a point where Echos are routinely sought in civil proceedings as well?

The technological advancements we have witnessed in the past decade alone are astonishing. And understandably so, such innovations may need to be considered for evidentiary purposes in a court of law. Whatever Amazon chooses to do with the Echo’s data will be just the beginning. It is incumbent upon the courts to ensure that production of information is narrowly applied to fit the particular circumstances of the case. Otherwise, the threat of unreasonably invading one’s privacy in the home will become imminent.

Numbers Show Decline in the Use of the Death Penalty

Although three US states placed a death- penalty-related question on the ballot in the 2016 election, the overall statistics show another record decline in the imposition of the death penalty.

According to the Death Penalty Information Center’s The Death Penalty in 2016: Year End Report, “the death sentences, executions, and public support for death penalty [are] at historical lows.”

Death sentences peaked in 1996, with 315 death sentences imposed, while in 2016, about 30 death sentences were projected to be imposed as punishment. Looking at the numbers since 1973 (the year when states began re-enacting death penalty statutes), the average decline over the last 10 years is significant, showing more than a 50% decline.

The report also offers interesting facts about individual state practices, for example:

Four states that are responsible for 90% of the executions in the U.S. in 2016—Georgia (9), Texas (7), Florida (1), and Missouri (1)—have also carried out more than 85% of the country’s 83 executions over the past three years (Texas (27), Missouri (17), Georgia (16), and Florida (11)). 80% of all executions in the U.S. in 2016 took place in either Georgia or Texas.

Lastly, the report documents changes in public support for the death penalty, with a steady decline in support of the death penalty in favor of life without parole.

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Victim’s Role in Criminal Proceedings: Past, Present and Future

BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.

At the dawn of the U.S. legal system, victims were central – indeed, the essential element – in the prosecution of crimes. Criminal investigations, criminal proceedings and restitution efforts were private, that is, they were initiated and pursued by those who had been harmed. Crime had not yet been framed as an offence against the state, or society, but was viewed as a failure of individuals and a violation of interpersonal relationships. Before the Revolution, an active role in the criminal justice process was not a privilege granted to victims; rather, it was their responsibility. This regime, drawn almost entirely from English common law, considered only one crime as an offence against the state: treason.

This is  a system of justice we would hardly recognize today, one in which the domains of criminal and civil law were nearly indistinguishable. It was not fated to last. With the American Revolution came fundamental changes in the understanding of crime, leading to the birth of what today we would call the modern U.S. criminal justice system.

Having established their sovereignty, the colonies quickly recognized that new social groups, with their own interests and vulnerabilities, had been born. Soon, public prosecutors were appointed, with burgeoning bureaucracies to follow. Crimes themselves came to be seen no longer as offenses against the individual, but as a form of harm against society. By the 19th century, private criminal prosecutions had been “entirely eliminated,” according to Mary Boland, currently one of the foremost legal advocates for victim’s rights and co-chair of the American Bar Association’s Victim’s Committee. As time passed, the victim  fell out of the criminal process’s view, until victims were little more than vehicles for the presentation of evidence assembled at the state’s pleasure.

It was not until the 1960s that the victim, as an individual with rights and interests, would again come into focus. The social revolutions of the 1960s led to a feeling of social instability that itself led to concerns with the issue of crime, and victim’s rights groups emerged. Because of a shared experience of oppression and vulnerability, champions of the Civil Rights Movement and the Feminist Movement coalesced around an understanding of criminal justice that emphasized victims’ rights. Crucially, calls for reform from progressive quarters were joined by similar ones from the conservative law and order movement, which urged renewed attention on the failings of the criminal justice system to combat rising crime rates.

A full-throated crime victims’ rights movement emerged in the 1970s, galvanized by the 1973 U.S. Supreme Court decision in Linda R.S. v Richard D., in which the Court affirmed, in dicta, that victims cannot compel criminal prosecution because “a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.”

Meanwhile, grassroots organizing led to the creation of domestic violence and rape crisis centers across the Nation, organizations that would come to form the backbone of a vocal national coalition. Reactionary impulses were also at work. In 1975, Rule 615 of the Federal Rules of Evidence was enacted, requiring courts to exclude witnesses, including victims, from the courtroom on the request of either prosecution or defense. Understandably, this has been widely cited as the low-water-mark in the battle to reintegrate victims into criminal proceedings. At the same time, the justice system had begun to realize that treating victims as valuable participants in proceedings was not contrary to, but supportive of, its own aims.

In 1974, Donald E. Santarelli, then-Director of the Federal Law Enforcement Assistance Administration, became acquainted with the work of Frank Cannavale. In his book Witness Cooperation, Cannavale argued forcefully that the loss of cooperative witnesses, victims who had become fed up with a justice system seemingly uninterested in their own needs, was the primary cause of prosecution failure. Santarelli was instrumental in funding the first victim and witness assistance pilot projects, including one in Denver’s District Attorney’s Office, which often went far beyond notifying victims of important court dates. In collaboration with grassroots organizers, a quickly-growing roster of victims’ assistance programs began offering crisis intervention services and on-call help lines. Likewise, prosecutors started to seek out and consider victims’ opinions on bail determinations, plea bargains, sentencing and parole hearings.

After his inauguration in 1981, President Ronald Reagan soon established the President’s Task Force on Victims of Crime. In its December 1982 final report, the Task Force acknowledged what many members of the public already knew: “[T]he innocent victims of crime have been overlooked, their pleas for justice have gone unheeded, and their wounds – personal, emotional, financial – have gone unattended.” As a starting point, the Task Force recommended a Constitutional Amendment that would enshrine the rights of victims.

While that has not yet happened, the crime victims’ rights movement has spurred enormous legislative successes. To date, 33 states have ratified constitutional amendments enlarging the rights of crime victims, according to the National Crime Victim Law Institute at Lewis & Clark Law School. The remaining states have all passed legislation on the subject. In 1982, Congress enacted the Victim and Witness Protection Act, granting federal courts the authority to award restitution to victims as part of a defendant’s sentence. The Victims of Crime Act of 1984 established the Office for Victims of Crime and the Crime Victim’s Fund, which compensates victims for a variety of crime-related losses.

While certainly welcomed, these initial legislative measures were often criticized for focusing disproportionately on financial remuneration at the expense of victims’ other needs. The Crime Victims’ Rights Act of 2004 went further, effectively granting victims a participatory role in criminal proceedings. The Act enumerated eight rights to which victims are entitled in federal criminal cases:

  1. The right to be reasonably protected from the accused.
  2. The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.,
  3. The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
  4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
  5. The reasonable right to confer with the attorney for the Government in the case.
  6. The right to full and timely restitution as provided in law.
  7. The right to proceedings free from unreasonable delay.
  8. The right to be treated with fairness and with respect for the victim’s dignity and privacy.

Unfortunately, in the view of  many advocates, the promise of inclusion heralded by the Crime Victims’ Rights Act has remained illusory. These rights are rarely enforced, says Mary Boland. The National Crime Victim Law Institute has called them “paper promises.”

Recent years have seen a new, double movement, in which the individualization of victims and their increasing impact on criminal justice proceedings is matched by efforts to individualize offenders and promote rehabilitative strategies over punitive measures. This is different from the movement of the 1970s that posited victims’ rights in opposition to defendants’ rights. Within this emerging regime, the lives of victims and offenders are no longer isolated from one another and the rights of one do not depend on limiting the rights of the other. In many ways, both parties to crime share the same path. It is not a paradox that, under many alternative theories of justice, the state should once again fall into the background, much as it did before the Revolution. The movement for restorative justice, a concept that has come to prominence since the late 1970s, focuses on minimizing the state’s role in proceedings, focusing instead on victim-offender mediation.

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Prof. Gershman on Racism in Jury Verdicts

In his most recent post titled How Racism Infects Jury Verdicts, Haub Law School Professor Bennett L. Gershman looks closely at two recent SCOTUS cases – Buck v. Davis and Pena-Rodriguez v. Colorado, both dealing with a blunt situation of racial bias in criminal trials.

In Buck v. Davis, an expert witness testified that the petitioner is more likely to be dangerous because he is Black and in Pena-Rodriguez v. Colorado, one of the jurors allegedly stated that he thought the defendant was guilty because he was Mexican. Both cases are currently before the United States Supreme Court.

Prof. Gershman concludes by saying that

It is almost impossible today to discuss any issue in criminal justice without at the same time discussing the role that race plays at every phase of the process. … given the increasing focus on protecting defendants against wrongful convictions, it is critical that a defendant’s constitutional right to a fair trial before an impartial jury not be corrupted by uniquely pernicious stereotypes promoted either by a purported “expert” witness or a bigoted juror. Both instances are so inflammatory as to destroy confidence in a jury’s verdict.

SCOTUS: Vacated Conviction in Mixed Verdict Case Does not Bar Retrial

Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.

Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.

Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.

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