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Can Recordings from Smart Devices Be Collected as Evidence?

By Hager & Schwartz, P.A.

January 31, 2020

Smart devices, like speakers, phones, and home assistants, have the ability to record what you say. When you use a specific keyword, the device gets activated, and questions and requests you make may be stored in a cloud that can be accessed at a later time unless you (the owner) delete. The recording feature of these devices has brought up a very interesting legal question about whether the stored information can be collected as evidence in a criminal case. The answer to that is somewhat complicated because of the nature of these recordings and the fact that laws haven’t entirely caught up to the capabilities of new technologies.

Free from Unreasonable Searches and Seizures

Under the Fourth Amendment, you have the right to be secure in your person and home and are protected from unreasonable searches and seizures conducted by law enforcement officials. Typically, officers must have a warrant to collect evidence as part of a criminal investigation.

Cases involving smart assistants are unique because recordings are stored in a cloud managed by the company that made the device. When you say something that gets recorded by your smart device, is the information still yours? Or does it now belong to the company because it is on its system?

Generally, upon setting up your smart device, you’re asked to agree to terms and conditions specified by the company it. The contract usually concerns what the company can or will do with your personal information. For instance, when you ask a question, that question may get recorded, and the company might use the information to gear advertisements toward your interests.

Thus, because of the terms you’ve agreed to, the recorded information technically belongs to the company. You trust the company to protect your privacy by not disclosing what your device has recorded other than as specified by the contract. So does that mean you’re not protected under the Fourth Amendment, and police can collect the recordings as evidence? Constitutional protections still apply, which means law enforcement officials can’t just go and grab your recordings.

Going Through the Smart Device Company

The question of collecting smart device recordings for a criminal investigation has come up several times in the past, most recently concerning a murder case in Florida. A man was accused of killing his girlfriend after the two were allegedly arguing. The woman was stabbed in the chest by a blade kept at the end of a bed. The man maintained that the woman was impaled as he pulled her off the bed, and he did not intentionally stab her.

At the time of the alleged incident, an Amazon Echo was in the room. Police believed the device might have been activated during the argument and recorded bits of what happened.

Amazon initially denied investigators’ requests to access the recordings. In a statement to NBC News, it said that it "does not disclose customer information in response to government demands unless we’re required to do so to comply with a legally valid and binding order." Police obtained a warrant and were able to collect the recordings as evidence.

In a separate murder case in Arkansas, Amazon cited the First Amendment when it denied law enforcement officials’ demand for recordings from a smart device. The company eventually gave investigators the recordings after the suspect consented.

Illegally Obtained Evidence Not Allowed

In summary, recordings from a smart device can be collected as evidence in a criminal investigation. However, police need a warrant or the person who owns the device must consent to having the recordings released. Otherwise, normal rules of evidence apply, meaning that if the information was illegally obtained, it might be inadmissible.

Charged with a crime in Daytona Beach?

Backed by nearly 50 years of combined experience, our criminal defense lawyers at Hager & Schwartz, P.A. can help fight your charges. We’ll review every piece of evidence to ensure your rights are protected throughout your case.

Schedule your consultation by calling us at (386) 693-1637 or contacting us online.