March 3, 2017 (Fault Lines) — If you have ever bought anything from Amazon, you know the creepy follow-up. All of a sudden, anything related to the product you looked at on the Amazon site starts showing up on your Facebook page and in the margins of whatever Internet article you are reading. So what if it was evidence against you for murder?
Amazon has your back. A Bentonville, Arkansas criminal case has put Amazon in the hot seat. One of its customers is suspected of murder. The police think Alexa, Amazon’s new in-home shopping device, may have heard what happened. They obtained a search warrant for Alexa’s records. Amazon is fighting back. In an interesting argument, Amazon’s lawyers have asserted that not only do your First Amendment rights prevent government snooping, so do those of your trusty robot assistant.
The typical argument when the government starts snooping around your business comes from the Fourth Amendment, which is supposed to ban warrantless searches and seizures unless one of 19,000 exceptions is present. But Amazon’s lawyers are taking a different approach by arguing the First Amendment.
Amazon is sticking to its guns in the fight to protect customer data. The tech titan has filed a motion to quash the search warrant for recordings from an Amazon Echo in the trial of James Andrew Bates, accused of murdering friend Victor Collins in Bentonville, Arkansas in November 2015. And it’s arguing as part of that motion that the responses of Alexa, the voice of the artificially intelligent speaker, has [sic] First Amendment rights.
The same company that seems to be watching your every online move doesn’t want the government watching it. In a motion filed in the Arkansas murder case, Amazon asserts the importance of your ability to shop online free from the watchful eyes of Big Brother.
Amazon does not seek to obstruct any lawful investigation, but rather seeks to protect the privacy rights of its customers when the government is seeking their data from Amazon, especially when that data may include expressive content protected by the First Amendment. As courts have observed, “[t]he fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights.”
In today’s world, the majority of people’s lives are lived online. If you sit down and really think about the amount of information you disclose to computers on a daily basis, it is staggering. While most people handle all of their financial transactions online and spout off every opinion that pops into their head all over Facebook or Twitter accounts, those same people are very concerned with privacy, apparently.
Amazon customers have expressed concern about disclosure of their purchase choices and have indicated a reluctance to use Amazon for online purchasing if their privacy is not protected.
Amazon’s concern claims to go to the heart of democracy.
Absent such protection for customers to seek and obtain expressive content, “the free flow of newsworthy information would be restrained and the public’s understanding of important issues and events would be hampered in ways inconsistent with a healthy republic.”
If you can’t shop Amazon in peace, you might just decide no more online shopping at all. Amazon argues the court should impose a heightened standard before allowing the government to request customers’ “expressive information.”
The reason for this heightened standard is that government requests for expressive information, by their very nature, chill the exercise of First Amendment rights. As another court explained, the knowledge that government agents are seeking records concerning customer purchases of expressive material from Amazon “would frost keyboards across America.”
Indeed, “rumors of an Orwellian federal criminal investigation into the reading habits of Amazon’s customers could frighten countless potential customers” into cancelling their online purchases through Amazon, “now and perhaps forever,” resulting in a chilling effect on the public’s willingness to purchase expressive materials.
This all sounds great. Amazon is acting a lot less like our computer overlord and more like a stalwart defender of freedom. Amazon’s motion cites numerous examples, complete with dramatic language, of courts restricting the government’s right to learn about the public’s reading habits.
The argument is inspiring. A business risking everything to stand up to the government and protect your speech. And Alexa’s speech. As government expands in both size and power, it becomes easier to bully the citizens. When a company stands up to the government, we can all rest a little easier knowing that your Amazon Subscribe and Save items won’t end up taking the stand in your murder trial.
There is just one little problem with all of this high-minded free speech love. Amazon already gave up exactly what they claim they are fighting over. According to Amazon’s motion, the fight is not quite what the press is making it out to be.
On February 8, 2016, Amazon partially complied with the warrant by producing subscriber information and purchase history for the defendant’s Amazon account. Amazon has not yet produced any recordings or transcripts.
Interestingly, all of Amazon’s examples are cases where the courts were hesitant to allow the government access into a person’s personal reading habits. And they have already done that by turning over purchase records in this case.
In In re Grand Jury Subpoena to Amazon.com dated August 7, 2006, the court held that the government must show a compelling need to obtain buyers’ personal identities and titles of books purchased through Amazon from a seller suspected of tax evasion.
Great example, but Amazon did all that in this case without objection. If Amazon already gave up the subscriber information and the purchase history, what is the fight all about? As much as we want to believe it’s a big company sticking up for a little guy, seems like more of a publicity stunt.
We have willingly given up a lot of our privacy. Its only logical that will come back to bite us. If you think the same company that reads your email and social media posts and uses that information to make billions of dollars has suddenly decided to guard your privacy, you are probably relying on the wrong party to protect those rights.
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