Page 30 - Cyber Warnings

Third, the right of a person to be secure in their effects against unreasonable searches and
seizures. While our Framers never included a definition to the term ‘effects’ in the Constitution,
courts have still applied the reasonable expectation of privacy standard to personal property.
When an individual’s personal property is not inside their home or on their person, there is little
to no protection . Alexa is considered personal property within personal property. In a sense,
Alexa is a storage device for other personal information we give it access to such as our
calendar, notes, reminders, and other personal information. It’s only logical that whatever
information of ours that Alexa has been given permission to access or link to, that it also be
protected.

Lastly, that no warrant shall be issued except on probable cause, describing the place to be
searched and persons or things to be seized. This requires a warrant specifically and
particularly identify the places and persons to be searched, and things to be seized. A warrant
will be held invalid if it is too broad or requests general items. We all know searches and
seizures are illegal without a warrant. In order for law enforcement to obtain a search warrant,
there must be probable cause shown to the Magistrate. Probable cause is where there is a
reasonable suspicion that a crime is being committed, about to be committed, or has been
committed. While there are exceptions to the warrant requirement (not discussed here), none
address smart devices, obviously.

Looking into the pending investigation, Arkansas law enforcement officials recently issued a
warrant for Amazon to release any and all recordings from its Alexa device that night, owned by
Mr. Bates. In response, Amazon declined to release such information and stated the following to
Engadget : "Amazon will not release customer information without a valid and binding legal
demand properly served on us. Amazon objects to overbroad or otherwise inappropriate
demands as a matter of course."

B. NEW DEVICES, SAME LAW….RIGHT?

Currently, our legal system is finding ways to FORCE smart technology into the rules of civil and
criminal procedure (both statewide and federally). Realistically though, it’s the same law being
applied or forcibly applied to include these new devices. However, the obstacle and the opinion
of many in the field is that our laws are outdated when it comes to smart technology in terms of
how Courts address it on an evidentiary level.

So, the first question is, how can smart devices be used in court? If it can be, which we are
starting to see and learn more about, when can they be used in court? Technically, these
devices do produce ‘statements’ and are advanced enough that it could be considered a person
for all intents and purposes. Indeed, that is an entirely different discussion for another time.

Under the Federal Rules of Evidence (“Rules”) evidence is relevant if it has any tendency to
make a fact more or less probable than it would be without the evidence and the fact is of
consequence in determining the action. Additionally, all relevant evidence is admissible
unless…another Rule says otherwise . Specifically, statements that are considered hearsay are
not admissible unless an exception applies. Hearsay is any statement made outside the

30 Cyber Warnings E-Magazine January 2017 Edition
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