Page 31 - Cyber Warnings

presence of court by a person for the purpose of offering it to prove the truth of the matter
asserted .

In the pending investigation of Mr. Bates, if the recorded audio were to be extracted and given
to the Prosecution, these recorded statements are considered hearsay because it was made by
Amazon’s device outside of court, for the purpose of corroborating or proving that Mr. Bates
either did or did not commit the murder of Mr. Collin’s. Currently, there is no hearsay exception
that would allow for ‘statements’ by Alexa to come into evidence as admissible. This is a
problem where we are in an age of smart devices that we are constantly communicating with to
advance our lifestyles. But that’s just it…isn’t it? A smart device…communicating? Sounds like
testimony to me, just as accurate as if the person themselves were testifying, no?

Indeed, it would make sense for experts and the writers of the Rules to consider amending them
to include provisions that address smart technology, whether it is adding a hearsay exception or
other such appropriate provisions. This is a long process though and many more cases would
need to be brought before the court before any such legislation is considered. With cases like
this and the San Bernardino case involving the FBI’s request for access into an individual’s
iPhone, you can most certainly count on hearing more about the court’s involvement in these
matters.

We will continue to see unique cases like this become more common, as augmented reality and
virtual reality is attempting to establish its presence in our market. It is only a matter of time,
sooner rather than later, that courts will have to make rulings on the impact our technology has
and will have on our laws and court system.

Until then, Mr. Bates’ next court hearing is March 17th, 2017. I agree with Marc Rotenberg , the
president of the Electronic Privacy Information Center, in his recent statement that “there needs
to be a clear legal standard that governs law enforcement access” to these smart devices.
These smart devices certainly open the door to warranted privacy concerns on many levels. It
will be interesting to see what measures are taken to address privacy concerns and evidentiary
concerns in the course of this investigation.

About The Author

Andrew Rossow is a Cyberspace and Technology Attorney at
Gregory M. Gantt Co. LPA in Dayton, Ohio. He graduated from
Hofstra University School of Business in New York and received his
J.D. from The University of Dayton School of Law. His practice
focuses on Cyberspace Law & Internet Law, Intellectual Property
Law, Entertainment Law, Criminal Defense, Contract Disputes, and
Probate.

Andrew can be reached online at [email protected] or follow him on FACEBOOK at
facebook.com/drossowlaw and TWITTER at @drossowlaw, and at our company website
http://dayton-lawyers.net/attorneys/andrew-l-rossow.html

31 Cyber Warnings E-Magazine January 2017 Edition
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