With Amazon Echo As My Witness…Can Virtual Home Devices Act As Legal Witnesses?

11/12/2019  — by Will Elton

With Hey Google, the walls really do have ears

As virtual technology continues to progress and develop, such tech products are becoming further and further ingrained into our lives. From taking on roles in the workplace to managing parts of your household, the influence and responsibility of virtual technology products are undeniable.

But, has it crossed your mind yet if this responsibility could extend into a legal role?

Let your imagination wander for a moment and imagine your Amazon Echo testifying on your behalf in court. Or worse, your Google Home providing evidence against you.

Virtual Home Devices

For those who don’t know what a virtual home device is, here’s a quick lowdown.

A virtual home device or smart device is a technological product that uses voice commands in order to carry out tasks for its user. These devices are commonly installed at home and can perform a variety of functions. These include, but are not limited to: answer questions, search for information online, and control other home devices. Additionally, a virtual home device, or virtual assistant, is typically awakened through customisable wake words or phrases. Such products include the ones listed above such as the Google Home, Alexa, Siri, or Amazon Echo. While these products are already commonly used within the United States, they are growing in popularity in Asia. 

These virtual home devices need to be on stand-by in order to listen out for its wake words. However, there is a high possibility that, if needed, they could provide crucial evidence on record as a legal witness in an ongoing investigation or legal case. This is especially so as many of the voice recordings processed within the product are retained in a cloud where the information is stored. 

And with that, let’s explore whether virtual home devices can act as legal witnesses. 

What constitutes a legal witness? 

To answer whether virtual home devices can be legal witnesses, we first need to define what, or who, a legal witness can be. 

However, this may not be as straightforward as one would think. According to the Cap. 8 Evidence Ordinance (“Ordinance”), Section 3 writes that persons should only be competent to give evidence as a witness if they were not of unsound mind. Through interpretation, it can be assumed that virtual home technologies would not be technically permissible as witnesses, as they are not a ‘person’

Despite this, recordings from a home device could possibly be classified instead in Section 22A of the Ordinance as documentary evidence from computer records in criminal proceedings. Within the Hong Kong jurisdiction, the definition provided so far for the term ‘computer’ would generally be “any device for storing, processing or receiving information”, as per Section 22A Subsection 12 of the Ordinance.  Subject to the specific conditions to meet the term ‘computer’, it seems as if virtual home devices do meet this general criteria. Therefore, the information stored would be allowed to be admitted as evidence. This, of course, is subject to each device on its own. 

However, the scope of this interpretation is only limited to criminal proceedings and not civil or administrative cases

The Death of Victor Collins 

There is yet to be any Hong Kong case law regarding virtual home assistants providing a critical role in a legal investigation as of now. However, there have been a few criminal cases within the U.S that have dealt with this issue.

It was November 2015 when Victor Collins was found dead in a bathtub after a night of drinking with friends. The police pointed blame at suspect James Bates for the murder of his friend. They seized an Amazon Echo within the household, as they believed there may be evidence of what happened during that night. A warrant was then filed in order to access the electronic information stored within the virtual home assistant. However, Amazon refused to hand over the information, citing that they would not release consumer information unless there is a “valid and binding legal document properly served” on them. In the end, the suspect voluntarily allowed the information to be released, and the charges against him were ultimately dismissed in 2017.

Although bizarre, there are several other U.S criminal cases that involve evidence being locked within a virtual home device. Quite recently, the murder of two young women by the suspect – Timothy Verrill in New Hampshire. And another death of a woman in Florida by her partner – Adam Crespo. Both cases involve an Amazon Echo that could possibly have witnessed the crime unfolding. However, like the Collins case, these cases also cited the statement from Amazon whereby no customer information would be released without a legally binding order. 

I’m always listening…

What does this mean?

This means that while a virtual home device may have witnessed a crime, the company of said product may not be so willing to give up the information without the proper means. This is especially so with Amazon and the Amazon Echo. 

However, this is not limited to Amazon. Many technology-based companies, such as Apple, have also refused to allow a potential suspect’s personal tech to be accessed for criminal trials. One famous example is Apple refusing a request from the FBI to hack an iPhone belonging to a suspect for the San Bernardino shootings in 2015

For us, that means if ever we need to access a virtual home device, we better be prepared with the right documents. 

But it is also best to keep in mind that these legal precedents do originate from the U.S, a country which depends on federal law. While Hong Kong revolves around a UK-derived common law system. Therefore, the application of this case law may not be as easily transferable as you might think. 

While the possible use of in-home virtual assistants as witnesses may sound like a big step forward in terms of technological advancement in criminal trials, Collin’s attorney, Kathleen Zellner, suggests otherwise. In response to Collin’s case, Zellner illustrated how many people could easily joke about killing someone or disposing of someone’s body. She brought up the very likely possibility that most of the information recorded on such virtual home devices could be easily misconstrued as something incriminating. This is especially so as smart home devices can possibly confuse certain words with another, as was the case in when a woman in Portland was surprised to find that her Amazon Echo secretly recorded a conversation and sent it to contact. 

Privacy Concerns 

With the rise of cases revolving around the monitoring and recording of virtual home device users, it begs the question: are these products invading our privacy?

This issue was perfectly demonstrated during a Google Home Mini preview during October of 2017. In order to garner reviews for its product, Google allowed the press attending the preview event to take the product home and review it. Much to the shock of one tech blogger, many audio recordings were found as the Google Home Mini saved conversations throughout the whole day despite not being ‘woken’ by the wake commands. Google eventually released a statement confirming the presence of a bug within the system and was subsequently fixed before being sold publicly. Even though the mistake was corrected, this event showed the real possibility that a slight glitch may compromise a user’s privacy within his/her own home. Thus, putting tremendous emphasis on the potential threat of virtual home devices. 

In a local sense, when dealing with privacy concerns, it is always best to refer to the Personal Data (Privacy) Ordinance (Cap. 486), also known as the PDPO. The PDPO aims to protect the privacy of an individual’s personal data and is concerned with the relevant matters. Moreover, in relation to personal data, the PDPO defines it as any data which relates directly to a living individual from which the identity of the said individual can be directly or indirectly ascertained in a form which access to or processing of said data is practicable. 

In Hong Kong, when in doubt, look to the six data protection principles provided by the Community Legal Information Centre (CLIC)’s 6 data protection principles. 

Summary

To sum up, while virtual home devices cannot technically be ‘witnesses’ in the strict sense, they can still provide evidence in the form of stored information. However, this is subject to the product company’s stance on releasing private customer information against the will of its user. While there have been quite a few cases allowing virtual home devices to provide evidence, these cases are yet to happen within the Hong Kong jurisdiction. Until then, we are only able to speculate the courts’ view on this issue. Be that is it may, the U.S case law precedents may provide the Hong Kong courts with a loose guide on how to navigate such cases. But of course, that is completely up to the discretion of the judge. 

This article does not constitute legal advice.

The opinions expressed in the column above represent the author’s own.

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Tags: PDPO | smart devices | virtual home devices | virtual witness | z-syndicate

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