Written by C. Alex Weaver, Esq.
Edited by Janeen B. Koch, Esq.
Voice-command technology has bridged the gap from science fiction to reality. Unfortunately, some people are learning that there are potential legal consequences for the conversations you have with your electronic devices.
Groundbreaking Litigation
The use of evidence obtained from voice-command technology in the courtroom is a modern reality. Prosecutors in Arkansas are attempting to obtain recordings from an Amazon Echo device (running Alexa) for use in a murder trial.[1] Prosecutors have requested access to all “audio recordings, transcribed records, text records and other data” from the Defendant’s Echo from the two-day period during which the victim is believed to have been killed. A judge has authorized a warrant for the materials. However, Amazon has fought the warrant and refused to provide the recordings.
This case has captured national attention for two reasons. First, this appears to be the first time this type of evidence has been sought for use in a court case. Second, the public appears surprised this technology is always recording.
Voice-Command Technology and How It Works
According to the Pew Research Center, over 70 % of American adults have smart phones.[2] Nearly all of those devices contain some form of voice-command technology. The two most common technologies are Siri (on Apple devices) and OK Google (on Android devices).
Both Siri and OK Google have similar modes of operation. They utilize a smartphone’s microphone to passively monitor conversations. When the programs hear certain trigger words (such as “Siri” or “Okay Google”) they send the recorded information to a corporate server which uses complex computer algorithms to interpret the voice-recording and process commands. Common applications of voice-command technology are to make hands free calls, set reminders, or send text messages.
What many consumers do not know is that these programs are always listening, regardless of whether or not you are using the program. Furthermore, both Siri and OK Google store digital files of all of the voice-commands given by an individual user, unless users opt-out of the data retention.[3] OK Google users can listen to these files by logging into his or her Google account.
How It Could Be Used In Insurance Litigation
This information may be helpful in insurance litigation, particularly in cases involving car accidents. One of the issues frequently encountered in car accident cases is whether any of the drivers were distracted, or using electronic devices. The information recorded by Siri, OK Google, or other technologies may be helpful in evaluating this issue. Evidence obtained from these devices is likely to become more prevalent as car manufacturers continue to integrate technology into their vehicles. For example, Hyundai has announced that it will begin integrating OK Google and Alexa into its vehicles.[4]
Recordings of voice commands, or the absences thereof, could allow attorneys to determine whether or not insureds or Plaintiffs were using hands free technologies prior to the accident. These recordings may also give attorneys an audio “snap shot” of relevant moments in time – possibly immediately after the accident. For example, if a Plaintiff uses OK Google or Siri to call the police after the accident his/her voice recording could offer insight into his/her emotional state and possible injuries. These records may also be helpful in assessing how soon after the accident he/she began looking for an attorney or healthcare provider, if he/she used voice commands to complete these searches.
How Virginia Courts Will View This Evidence
Virginia courts may treat recordings captured by OK Google, Alexa, or Siri as hearsay evidence depending on the way an attorney attempts to use them. The Virginia Supreme Court defines “hearsay” as an out of court statement being offered for the truth of the matter asserted. Va. Sup. Ct. R. 2:801(c). Thus, the hearsay rule may apply to a recording in which the Plaintiff says “I am not injured” or “the accident was my fault.” However, it is unlikely that it would apply to a recording of a command to “call Tom” or “find a lawyer.” The attorneys at KPM Law are well-trained in the rules of evidence and can advise you whether or not particular statements are hearsay, and if so which hearsay exceptions may apply.
The biggest practical challenge to utilizing recordings from voice-command technologies may be obtaining the evidence. Amazon’s opposition to the warrant in the Arkansas murder case suggests that companies will be very reluctant to produce recordings. In cases where it is suspected that voice-command recordings exist, insurance companies should immediately notify KPM Law. Our attorneys will issue preservation letters to the companies (Apple, Google, Amazon, etc.) who possess the recordings and seek to obtain these materials through the appropriate avenues.
[1] Gabe Friedman, Could Amazon Echo Hold Evidence in a Murder Case?, Bloomberg Law (January 4, 2017), https://bol.bna.com/could-amazon-echo-hold-evidence-in-a-murder-case/.
[2] Jacob Poushter, Smartphone Ownership and Internet Usage Continues to Climb in Emerging Economies, Pew Research Center (February 22, 2016), http://www.pewglobal.org/2016/02/22/smartphone-ownership-and-internet-usage-continues-to-climb-in-emerging-economies/
[3] Jose Pagliery, Google keeps audio records of your ‘OK Google’ requests, CNN.Com (June 2, 2015)http://money.cnn.com/2015/06/02/technology/android-voice-dictation/
[4] Megan Wollerton, ‘OK Google, start up my Hyundai’ comes true at CES, CNET.Com (January 3, 2017), https://www.cnet.com/roadshow/news/ok-google-start-up-my-hyundai-comes-true-at-ces-2017/.