Criminal lawyers are carefully watching events unfold after Amazon was ordered by a New Hampshire judge to provide data from an Echo smart device.

The order comes as authorities continue to investigate the murder of two women in Farmington, New Hampshire, in a house where an Amazon Echo may have recorded info related to the crime. Timothy Verrill has been charged in the case.

The order, issued by Strafford County Superior Court Justice Steven M. Houran, has led to controversy over access to such data—and has some lawyers revisiting definitions of probable cause and privacy in what otherwise may have been a routine murder case.

As of November 20, Amazon had not turned over the recordings. In a statement released this week, Amazon said it “will not release customer information without a valid and binding legal demand properly served on us.”

The company added that it “objects to overbroad or otherwise inappropriate demands as a matter of course.”

“What likely is happening now is that prosecutors are talking with Amazon lawyers to sort out what the judge's order means and the scope of their search for info,” Albert Scherr, who is chair of the International Criminal Law & Justice Program at the University of New Hampshire School of Law.

Inside the Case

Andrew Ferguson, who teaches law at the University of the District of Columbia, explained that Internet of Things (IoT) enabled evidence “presents hard decisions for judges because analog rules do not necessarily make sense in a digital world.”

“In essence, the judge conflated probable cause, that a crime occurred with probable cause, that evidence of that crime will be on the device. This is both understandable, because judges have routinely granted such warrants for homes or cars or computers, but also probably a stretch if you think about what the probable cause standard should be,” Ferguson said.

However, he warned, just because a crime has been committed does not mean that all the smart devices associated with the suspects should be searched because of the possibility of helpful evidence. “I think the judge's court order fails to understand exactly how Amazon Echos work, and is based on a hope for possible evidence as opposed to a reasonable certainty that incriminating evidence will be found.”

Ferguson also noted that prosecutors “need to be thoughtful” about the “scope of requests and whether they are fishing for hoped for evidence or requesting suspected actual evidence.”

The New Hampshire case is not the first time authorities wanted recordings from an Echo. David O'Brien, senior researcher at Harvard's Berkman Klein Center for Internet & Society, referred to an earlier case related to a murder that took place in Arkansas. He said the case “likely provides a blueprint to how Amazon will approach the New Hampshire case.”

For instance, Amazon “has already indicated it intends to challenge the New Hampshire's court's order, and I would anticipate Amazon uses a similar argument,” O'Brien said.

Yet, the New Hampshire case, O'Brien added, does have some differences. “The owner of the Echo was one of the victims, so there is no possibility that consent to search could be given. The privacy interests of the owner are also diminished posthumously. In any event, if Amazon argues similarly and wins, it's still possible the State could meet the higher burden and ultimately compel Amazon to produce the recordings.”

It is also noteworthy that Amazon Echo was designed to “record and transmit only after the trigger phrases have been used,” O'Brien said. But virtual assistants sometimes experience false triggers. “It's plausible that something like that may have occurred and the Echo may have picked up some audio that could be used as evidence in the case against the suspect,” he said.

The Big Picture

Looking at the bigger picture, Ferguson said the internet of things “is going to revolutionize trial practice, and all lawyers need to start paying attention to the changes in technology and law.”

Similarly, O'Brien said “in the years to come, I think we're going to see more of this kind of evidence. And, it won't just be in criminal cases. There's potential for use in civil cases and disputes as well.”

“What concerns me most is that we are heading into this new era using legal frameworks based on an analog world where these things didn't exist,” O'Brien warned. “These devices provide a rough approximation to an intermittent surveillance bug, and law enforcement can increasingly turn to intermediaries, like Amazon, to seek disclosure of recordings. That's pretty astonishing. It's also not implausible to think that in the future law enforcement may enlist or compel companies to help with real-time surveillance by surreptitiously switching on a microphone or camera.”

He added that this law enforcement focus may have been inevitable. “Internet of Things devices, like the Echo, have the potential to drastically reshape parts of the landscape. The way that I look at it is that everything around us—plain, everyday objects—is slowly transforming into computers connected to the internet; and with this we can expect more 'always-on' sensors, like microphones and cameras, to be embedded in these objects.”

Ultimately, O'Brien called it “no surprise to hear law enforcement is interested in gaining access to data that may have been recorded, particularly if it has the potential to fill in an evidentiary gap.”

There is a lesson for attorneys representing tech companies, too. “Police and prosecutors see you as an ever-expanding potential source of information on individuals with whom the company interacts as customers and clients,” Scherr said. “While the information you gather is a source of revenue for you, its gathering has potential criminal-investigation consequences for both the company and the customers. As a company lawyer, one needs to work with the company's leaders to proactively sort out the company's policies when interacting with the police.”