That very question was the subject of a murder prosecution in Arkansas.2 A victim died in a home that had the Amazon Echo speaker (Alexa) installed and operational.3 Alexa is a wireless computer speaker that works by constantly listening for its “wake word” – trigger words like “Alexa” or “Amazon” – that cause the equipment to record voice commands and transmit them to a processor that analyzes them in order to fulfill a request.4 So, it is possible, the police suggested, that in the process of recording a user’s voice commands that Alexa can also capture other background sounds – even possibly the critical moments of a crime. Amazon stores Alexa’s recordings remotely.5 The police demanded that Amazon produce the defendant’s Alexa’s remote recordings.6

Not long ago, another prominent criminal prosecution also rested on the contents of a smart device – think the FBI and the locked iPhone in California.7 The FBI wanted to access the iPhone, and it asked a federal court to force Apple to create software to unlock the smartphone.8

The two cases raised common questions, summed up this way: Can the government compel disclosure of the user’s data in those smart devices? If so, under what circumstances? Before courts could answer those questions in both cases, the issues became moot. However, given the importance of the constitutional questions raised and the high likelihood of recurrence, this article attempts a more searching analysis of those issues.

ALEXA, HOW DID VICTOR DIE?
Nov. 22, 2015, was anything but a typical day. James A. Bates, a homeowner in Bentonville, Arkansas, called 911 to report that one of his overnight guests, Victor Collins, was found dead, facedown, in the hot tub in his backyard. When the police responded to Bates’ call that Sunday morning, they indeed found Collins’ body as had been described on the call; but in addition, they found that the victim’s left eye and lips were dark and bruised. The police also found blood spots around the tub, as well as broken bottles and knobs. The police suspected foul play. The chief medical examiner ruled that Collins’ death was a homicide.9

Bates’ home was no ordinary home – it was an impressive tech-filled fortress. The home was filled with a wide-array of “smart home” devices – a smart thermostat, a smart alarm system, Amazon Echo digital assistant and so on.10 Typical warrant-sanctioned home searches focus on the interior, but when particularity requirements are met, computers and like devices are fair game.11

In the Arkansas case, the police took particular interest in the defendant’s Alexa. The police believed that Alexa is always recording what happens around it.12 In truth, as noted, Alexa is always listening for its “wake word” – trigger words like “Alexa” or “Amazon” – and only starts to record when the system picks up those trigger words.13 That, in turn, triggers the system to analyze and attempt to process the user’s command that follows the trigger word. The police believed that in the process of recording, Alexa could also have captured other background sounds or information that might shed some light on what happened to Collins.14

After Bates declined a voluntary search of his Alexa data, Amazon filed a motion to quash the search warrant. Amazon argued that given the important First Amendment and user privacy interests at stake, a general broad search warrant was insufficient – the state needed to meet a heightened burden for disclosure.15 The gist of Amazon’s First Amendment argument was that the user’s requests to Alexa encompass traditionally protected requests for information and the right to seek and engage in commercial transactions. Alexa’s responses back to the user are also protected speech because internet searches are generally considered protected speech. To allow the government to read, review and listen to all of its user’s data was censorship; moreover, Amazon argued that level of government intrusion would have a chilling effect on expressive activity.16

Amazon also made a secondary privacy argument. Citing Supreme Court precedent, Amazon argued that Alexa, like a cellphone, contained sensitive personal data that was “[t]he sum of an individual’s private life.”17 That argument, however, was not extensively developed, probably with good reason. At the time, Supreme Court precedent made clear that Americans had no expectation of privacy in information voluntarily shared with third parties.18

WHAT’S ON THAT IPHONE?
In the locked iPhone case, the FBI moved under the All Writs Act,19 and asked the federal court in California to order Apple to develop software to assist the government to unlock an iPhone of interest in a criminal investigation.20 The All Writs Act is a federal statute that empowers federal courts to issue “all writs necessary or appropriate” to parties and to nonparties alike in civil and criminal cases in aid of their jurisdiction.21 The range of orders under the act vary greatly.22 As relevant here, in the iPhone case, Apple, like Amazon in Arkansas, raised First and Fourth Amendment objections among others.23

THE GREAT LEGAL BATTLES THAT NEVER WERE
Ultimately, the two cases faced a similar fate; before the courts could rule on the weighty questions, the issues became moot. Bates released the requested information and the charges were dropped, while in the iPhone case, the government accessed the phone without Apple’s assistance.24

THE LEGAL BACKGROUND ON THE ISSUES RAISED

Carpenter v. United States – A Great Call for ‘We the People’

In Carpenter,25 the Supreme Court had to decide whether the government’s access of historical cellphone records that chronicled in vivid detail a person’s movements implicated the Fourth Amendment. Timothy Carpenter and an accomplice were convicted of several counts of armed robberies based in large part on historical cellphone records that chronicled their movements. The 6th Circuit affirmed the convictions because although a defendant’s private communications are protected, routing information like historical cell-site data is not.26

The Supreme Court reversed. The court held that the government’s collection of the historical cell-site data was a search that required a warrant.27 The fact that the data were business records did not change the analysis. As the court explained, the Fourth Amendment protects not only people’s rights in property but also their reasonable expectations of privacy.28 Thus, so long as a person intends to keep information private and the expectation of privacy asserted is one that society is willing to accept and protect, then Fourth Amendment protections attach.29 The case, the court reasoned, implicated Carpenter’s historically protected interests in his physical location and movements; prior cases had already recognized these as protectable interests.30 Carpenter’s phone data revealed detailed information about his exact location and movements. The court acknowledged, however, that its decisions in United States v. Miller and Smith v. Maryland held that there is no reasonable expectation of privacy in information freely shared with third parties.31 The court noted, however, that Miller and Smith did not rest only on the fact information was shared; rather, those cases also turned on the nature of the information sought and any legitimate expectation of privacy in their contents.32 In a word, there is a world of difference between the limited personal information at issue in Miller and Smith and the treasure trove of personal information that tracked Carpenter and his associates’ movements in vivid detail for a number of years.33 A mechanical application of Miller and Smith was unwarranted; the expectation of privacy was still intact, so a warrant was needed to collect the data.34

Four justices entertained the idea of a property-based solution to the Fourth Amendment melee in Carpenter.35 According to those justices, under certain circumstances, user data can be considered property. Based on that assumption, under settled legal principles, a user’s entrustment of his property (for example emails) to a third party does not always result in loss of ownership rights since the user still owns his property; the Fourth Amendment requires a warrant before a search is performed on that property.36 Three justices found that Carpenter did not own his cellphone data, while Justice Gorsuch found that argument forfeited.37

The Internet, Software, Criminal Law and the First Amendment

Under longstanding First Amendment principles, the people have the right to speak and receive information and ideas.38 The First Amendment also encompasses a privacy element – the right to engage in protected speech or associate anonymously without government interference.39 The Supreme Court has extended First Amendment protections to internet speech.40 As the court has made clear, the “vast democratic forums of the internet” are now the new public squares where core First Amendment activity takes place.41 That is why when law enforcement wants to intrude upon core expressive materials and data, they must initially show a meaningful and particular nexus between the requested information and the investigatory efforts.42 The nexus between First Amendment protected information and a criminal investigation is bridged by a search warrant “particularly describe[d]” supported by probable cause.43

The interplay between third-party subpoenas and the First Amendment is complex. A subpoena, unlike a search warrant, has no threshold probable cause requirement – it is policed by reasonableness and burdensomeness standards.44 In fact, the only modicum of judicial review comes into the picture after the subpoena has already been sent and received by the subject.45 Even then, courts have, at times, imposed some additional controls – like heighted need requirements – on subpoenas when important First Amendment interests are at stake.46

CONSTITUTIONAL ISSUES IN THE ALEXA AND IPHONE CASES
The constitutional questions in the Alexa and iPhone cases were quite similar. In both cases, the Fourth Amendment was overshadowed by the Miller/Smith third-party doctrine. Carpenter has changed that. As we explain, even in the wake of Carpenter, the First Amendment might still play some role in third-party compelled disclosure access cases.

Reasonable Expectation of Privacy in User Data in Smart Devices

Internal Cellphone User Data. The Supreme Court in Riley v. California47 already held that the government needs a warrant to access a user’s internal user data on cellphones.48 The court stated that a warrant requirement was reasonable because cellphones, due to their widespread use, contain the privacies of life.49

Internal Smart Assistant Data. Smart assistants are usually located in the home.50 That fact alone necessitates a somewhat different analysis because in Fourth Amendment parlance, “the home is first among equals.”51 In his home, a man may retreat into peace and be free from government intrusions on his papers, property and effects.52 In the home, “privacy expectations are most heightened.”53 Such that, as a threshold matter, a search warrant for the home is required.54 Smart assistants like Alexa are computers that receive user voice commands and connect to the internet in order to comply with the user’s request.55 Users use smart assistants, like other devices of similar import (cellphones, computers, etc.) for varied uses – commercial, familial, recreational, relational, political, professional, sexual and so on.56 Understood in this light, smart assistants, like cellphones or other forms of personal computers, truly encompass the great “privacies of life.”57 Thus, for those smart assistants whose user data can be accessed within the home, a warrant that specifies the specific data to be searched in relation to clearly articulated crimes would likely be needed.58

External Data on Cellphones and Smart Assistants. Carpenter’s effect is most robust in this area. Cellphones transmit historical data and communications through air waves.59 Similarly, Alexa transmits commands and search data to Amazon, which stores it remotely.60 In the past, a mechanical application of Miller and Smith would have categorically negated any expectation of privacy because this information is shared with third-party service providers.61 Carpenter repudiated that approach.62 First, as noted, the court noted that Miller and Smith do not categorically remove all expectation of privacy in the wake of third-party disclosure.63 Second, the expectation of privacy calculus greatly factors in the nature and quality of the sensitive data at issue; the more personal and revealing the information is, the likelihood that the expectation of privacy remains. It is possible that external data could also implicate the very privacies of life if the requested information revealed a person’s exact location, personal communications, services and goods procured and intimate, anonymous or political affiliations and views, among others.64 Third, for that class of sensitive data, the user is forced to “share” the information with the service providers as a precondition to use; Carpenter refused to read those arrangements as being voluntary, which is what Miller and Smith require for the third-party doctrine to apply.65 Altogether, a warrant would be needed. Moreover, as Carpenter made clear, when a warrant is required, the government cannot circumvent Fourth Amendment protections with use of a subpoena or generalized court order.66

External Data Could Also Have Property-Oriented Constitutional Protections

In the 2017 term, the court decided Byrd v. United States,67 a case that affirmed that under established property law principles, a person who owns or has lawful possession of property has a right of privacy, by virtue of the inherent power to exclude.68 Taking cue from Byrd and other longstanding precedents, four justices, Justice Gorsuch chiefly, were open to the idea that a property- based solution could have resolved the external data problem encountered in Carpenter.69 The premise of the argument was straightforward: the defendant must have lawful possession or interest in the property.70 Taking this as a starting point, Justice Gorsuch argued in Carpenter that contemporary statutory and common law appeared to recognize that electronic data generated by a user is his property despite being entrusted to a third party, but he found the argument forfeited in Carpenter.71 If Justice Gorsuch’s property-based premise is accepted, then Byrd and other settled precedents could also provide additional Fourth Amendment protections in external user data cases.72

The First Amendment Could Still Play a Role in an iPhone Break-in Sort of Case

Carpenter and possibly Byrd (to the extent Justice Gorsuch’s view carries sway) will probably significantly reign in the reach of the Miller/Smith third-party disclosure doctrine in most situations involving sensitive data shared with service vendors.73 The iPhone case, however, presented a slightly different twist – the government arguably wanted to compel an innocent third party to create software to break into a device. Software, some courts have found, is a form of speech.74 Thus, forcing a company to engage in speech it objects to, is probably contrary to the First Amendment unless narrowly tailored to further a compelling state interest.75 Because the government does not act as an economic regulator in those situations, the commercial speech doctrine, which has a greater tolerance for compelled speech, is inapplicable.76

In fact, outside the commercial speech context, the government generally crosses an impermissible line when it forces a person to accommodate or incorporate other speech that affects the speaker’s original message.77 In the iPhone case and many others like it, the service provider gives assurances to its users that the software on the phone secures their data from unauthorized third parties. Forcing those service providers to create a software that permits a backdoor entry to their equipment for the government and other unauthorized third parties arguably sends an entirely different message to the users. The new software, it could be argued, takes up space the device company could have used for other information or software it desires.78

The counter-argument is, however, equally compelling: the legal system routinely compels witnesses through deposition or trial subpoena to testify and generate speech they otherwise would not.79 That power, which is essential to a proper exercise of the judicial function, predates the First Amendment.80 However, unlike compelling a witness to testify in court, which is generally limited to pre-existing facts and documents within the person’s knowledge or control, creation of software arguably requires generation of new speech.81 In an appropriate case, depending on the competing interests at stake, the issue will require greater clarity from the U.S. Supreme Court.

CONCLUSION
Conventional First and Fourth Amendment tests do not fully answer questions posed by the internet, smartphones and devices of today. Data is increasingly electronic and expressed on the great fora of the internet. Thus, the scope of privacy expectations will likely continue to shift and challenge traditional modes of criminal investigation and settled conceptions of liberty.

ABOUT THE AUTHOR
Mbilike Mwafulirwa is an attorney at Brewster & DeAngelis. His practice focuses on complex litigation, civil rights and appellate law. He is a 2012 graduate of the TU College of Law.

1. “M. Jones, List of Alexa commands you’re not using but should be”, komando.com, //www.komando.com/tips/386042/list-of-alexa-commands-youre-not-using-but-should-be (last seen Feb. 3, 2019).
2. Search Warrant, State v. Bates, CR-2016-370-2 (Ark. Cir. Ct. Jan. 29, 2016).
3. Id.
4. Amazon Br. 4, State v. Bates, CR-2016-370-2 (Ark. Cir. Ct. Feb. 17, 2017).
5. See Search Warrant, State v. Bates, CR-2016-370-2 (Ark. Cir. Ct. Jan. 29, 2016).
6. Id.
7. In re Search of an Apple iPhone, ED 15-0451M, 2016 WL 618401 (C.D. Cal. Feb. 16, 2016).
8. See Gov’t App & Memo. of Law, In Search of an Apple iPhone, 2016 WL 680288 (C.D. Cal. Feb. 16, 2016).
9. See Search Warrant, State v. Bates, CR-2016-370-2.
10. See id.
11. See United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009).
12. Id.
13. Amazon Br. 4, State v. Bates, CR-2016-370-2.
14. See Search Warrant, State v. Bates, CR-2016-370-2.
15. See Amazon Br. 9-13, State v. Bates, CR-2016-370-2.
16. Id.
17. Id. at 9 (quoting Riley v. California, 134 S.Ct. 2473, 2489 (2014)).
18. United States v. Miller, 425 U.S. 435, 443 (1976); Smith v. Maryland, 442 U.S. 735, 741 (1979).
19. 28 U.S.C. §1651.
20. See In re Search of an Apple iPhone, 2016 WL 618401.
21. See Clinton v. Goldsmith, 526 U.S. 529, 537 (1999); ITT Comm. Dev. Corp. v. Barton, 569 F.2d 1351, 1359 (5th Cir. 1978).
22. Harris v. Nelson, 394 U.S. 286, 299-300 (1969) (in aid of discovery); United States v. New York Times Tel. Co., 434 U.S. 159, 174 (1977) (in aid of justice in criminal case).
23. See Apple Mot’n to Vacate & Memo. of Law, In re Search of an Apple iPhone, at 322-344.
24. “Arkansas judge drops murder charge in Amazon Echo case”, CNN, www.cnn.com/2017/11/30/us/amazon-echo-arkansas-murder-case-dismissed/index.html (last accessed Feb. 2,
2019); “The FBI Drops Its Case Against Apple After Finding a Way Into That IPhone”, The Wire, www.wired.com/2016/03/fbi-drops-case-apple-finding-way-iphone/ (last accessed Feb. 2, 2019).
25. 138 S.Ct. 2206 (2018).
26. Id. at 2212-2213.
27. Id. at 2220-2021.
28. Id. at 2217.
29. Id. at 2213.
30. Carpenter, 138 S.Ct. at 2217-2218.
31. Id. at 2216-2217.
32. Id.
33. Id. at 2218-2219.
34. Id. at 2219.
35. Id. at 2230 (Kennedy, J., dissenting, joined by Thomas, J., and Alito, J.); id. at 2269 (Gorsuch, J., dissenting).
36. See, e.g., Carpenter, 138 S.Ct. at 2278 (Gorsuch, J., dissenting); id. at 2230 (Kennedy, J., dissenting).
37. Id. at 2272 (Gorsuch, J., dissenting); id. at 2229-30 (Kennedy, J., dissenting).
38. See Stanley v. Georgia, 394 U.S. 557, 564 (1969).
39. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); accord NAACP v. Alabama, 357 U.S. 449, 462 (1958).
40. Reno v. ACLU, 521 U.S. 844, 870 (1997).
41. See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).
42. See Quantity of Books v. Kansas, 378 U.S. 205, 209-213 (1964) (Plurality Opinion) (citations omitted).
43. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978); Stanford v. Texas, 379 U.S. 476, 485 (1965).
44. See Carpenter, 138 S.Ct. at 2222; see also United States v. R. Ent., Inc., 498 U.S. 292, 301 (1991).
45. See United States v. Nixon, 418 U.S. 683, 691-692 (1974).
46. Gibson v. Fla. Leg. Invest. Comm., 372 U.S. 539, 546 (1963) (heightened requirements for subpoena that implicated First Amendment interests); In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., 26 Media L. Rep. (BNA) 1599, 1600-1601 (D.D.C. 1998); Amazon.com v. Lay, 758 F. Supp. 2d 1154, 1172 (W.D.W. 2010).
47. 134 S.Ct. 2473 (2014).
48. Id. at 2489. 2493.
49. Id. at 2494-2495.
50. Brian Chen, “How to Make Your House a Smart Home”, N.Y. Times, www.nytimes.com/guides/technology/how-to-make-a-smart-home (last seen Feb. 3, 2019).
51. Florida v. Jardines, 569 U.S. 1, 6 (2013).
52. See Silverman v. United States, 365 U. S. 505, 511 (1961).
53. California v. Ciraolo, 476 U. S. 207, 213 (1986).
54. Payton v. New York, 445 U.S. 573, 586 (1980).
55. Amazon Br. 4, Bates, CR-2016-370-2.
56. See Carpenter, 138 S.Ct. at 2217 (citations omitted).
57. See, e.g., Riley, 573 U. S. at 2494-2495.
58. Cf. id. at 2489; cf. Otero, 563 F.3d at 1132 (particularized warrant needed for computer searches).
59. See Carpenter, 138 S.Ct. at 2211-2212.
60. Amazon Br. 4, Bates, CR-2016-370-2.
61. Carpenter, 138 S.Ct. at 2216.
62. Id. at 2218-2219.
63. Id. at 2219.
64. Id. at 2217-2219.
65. Id. at 2219-2220.
66. Carpenter, 138 S.Ct. at 2221-2222.
67. 138 S.Ct. 1518 (2018).
68. Id. at 1527.
69. See Carpenter, 138 S.Ct. at 2230 (Kennedy, J., dissenting); id. at 2269 (Gorsuch, J., dissenting).
70. Byrd, 138 S.Ct. at 1529.
71. See Carpenter, 138 S.Ct. at 2270 (Gorsuch, J., dissenting) (collecting cases).
72. See, e.g., Byrd, 138 S.Ct. at 1527; Katz, 389 U.S. at 352; see also generally Jardines, 569 U.S. at 6-8.
73. See Carpenter, 138 S.Ct. at 2217-2219; Byrd, 138 S.Ct. at 1527.
74. Univ. City Stud., Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001); Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000); cf. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 790 (2011) (video games are a form of speech).
75. W. Va. Bd. of Edu. v. Barnette, 319 U. S. 624, 642 (1943); Turner Broad. Syst. Inc. v. FCC, 512 U.S. 622, 662 (1994).
76. See Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457, 459 (1997).
77. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573-574 (1995).
78. See, Apple Mot’n to Vacate Order, In re Search of an Apple iPhone, 2016 WL 680288; see also e.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 256 (1974) (compelled speech would “take up space that could be devoted to other material the [publisher] may have preferred to” publish).
79. See Gov’t Reply Brief in Supp. of Mot’n to Compel, In re Search of an Apple iPhone, 2016 WL 680288 (citing Murphy v. Waterfront Comm’n of N.Y. Harb., 378 U.S. 52, 93-94 (1964), abrogated on other grounds, United States v. Balsys, 524 U.S. 666 (1988)); see also generally Carpenter, 138 S.Ct. at 2247-2251 (Alito, J., dissenting).
80. See New York Tel., 434 U.S. at 175 n. 24.
81. Id. (First Amendment, notwithstanding, when compelled by judicial process, witnesses must testify as to what they know); accord Branzburg v. Hayes, 408 U.S. 665, 682 (1972); contrast with generally Corley, 273 F.3d at 449 (software is electronic speech that is purposefully created anew); accord Junger, 209 F.3d at 485.