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State v. Bates: Amazon Argues that the First Amendment Protects Its Alexa Voice Service

Commentary First Amendment

State of Arkansas v. James A. Bates, Case No. 2016-370-2 (Ark. Cir.). Memorandum of Law in support of Amazon’s Motion to Quash Search Warrant (hosted by Regmedia).

Amazon filed a Motion to Quash in response to a search warrant for the recordings and transcripts from one of its Alexa Voice Service-enabled Echo devices ("Echo”). The records are stored on Amazon servers. In its memorandum of law, Amazon argued that the First Amendment protects both the defendant's communications to Amazon's servers and Amazon's responses.

The warrant in question stemmed from a murder investigation by the Bentonville, Arkansas police. The defendant, James A. Bates, owned an Echo. The police served a warrant on Amazon for any audio recordings and transcripts related to the communications between Bates’s Echo and Amazon’s Alexa Voice Service (“Alexa”) during the 48-hour period surrounding the murder, and for his subscriber and account information. While Amazon produced the latter, it has fought to keep the recordings and transcripts out of court.

According to Amazon, both the user’s speech, which is received by the Echo and transmitted to Alexa, and Alexa’s subsequent responses, which are sent from Amazon servers and received by the Echo, are protected speech under the First Amendment. “At the heart of First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery,” it said. Therefore, users’ communications to Alexa, which include requests for expressive materials such as music, podcasts, and audiobooks, should be subject to heightened First Amendment protection—similar to the treatment of physical purchase records kept by bookstores. As for Alexa’s responses, Amazon contended that the First Amendment protects them for two reasons: first, the responses may contain the expressive materials requested by the user’s speech; and second, because they are forms of Amazon's First Amendment-protected speech. Amazon turned to Zhang v., 10 F. Supp. 3d 433 (S.D.N.Y. 2014), to support its claim. The court in Zhang held that "the First Amendment protects as speech the results produced by an internet search engine." In its memorandum of law, Amazon likened "Alexa’s decision about what information to include in the response" to "the ranking of search results."

If the Echo’s communications constitute protected First Amendment speech, the government’s demand for them should be subject to “a heightened level of scrutiny.”  To succeed under a heightened level of scrutiny, the government must show a (i) “compelling interest in the requested information,” and demonstrate (ii) a “sufficient nexus between the information sought and the underlying inquiry of the investigation.”  If the government makes its prima facie case, Amazon argued that the court should then review the requested information in camera to make sure that the production of the material is indeed warranted. According to Amazon, heightened scrutiny is necessary to avoid chilling users exercising their First Amendment rights, particularly their “willingness to purchase expressive materials.”

How a court would rule on this line of reasoning will, for now, remain a mystery, as Amazon dropped its argument after the defendant authorized Amazon to release the recordings. However, according to Professor Toni Massaro at the University of Arizona College of Law, it is still “surprisingly plausible” that Alexa is protected by the First Amendment.

An overview of Amazon’s argument, along with its memorandum of law in support of its motion, can be found on ForbesTechCrunch and The Independent provide additional overview and analysis of the case.

Sylvia Sui is a 2L at Harvard Law School.