March 1, 2017

Digital Evidence and Privacy: Can you ask Alexa if mom’s incapacitated?

by Morgan Wiener

Much has been written on this blog about digital assets, and you have likely given some thought to the impact that this relatively new category of assets has on estate planning and administration.  But have you considered the other ways in which new digital devices and technologies might impact your practice and your clients’ lives?  If not, a murder case in Bentonville, Arkansas, home of Walmart, will give you something to think about.

James Bates is accused of murdering his coworker Victor Collins (yes, they both worked at Walmart) in a hot tub in November 2015.  On the night of the alleged murder, Bates’s Amazon Echo was streaming music through its speaker, and Bentonville police have issued a search warrant for the Echo’s recording from that night hoping it will shed light on what happened.

The Amazon Echo is a speaker and virtual assistant that works by constantly listening to background noise and conversation.  The virtual assistant, Alexa, is activated when the Echo hears someone say “Alexa.”  The background conversations are not recorded by the Echo, but anything said after Alexa is activated is recorded.  Because Bates’s Echo was streaming music on the night of the alleged murder, the police believe that it may have been activated and recording conversations.

Amazon has refused to turn over the recordings and asserts that they are protected by the First Amendment.  Amazon has argued that turning over the recordings to the police would chill users’ exercise of their free speech rights to seek, receive, and review information in the privacy of their own homes.  Amazon also notes that searches of digital records have the potential to reveal an extraordinary amount of information about the user, and the scope of this information may be much broader than what might be gleaned from the review of a paper document.

The outcome of this case is sure to have important implications for privacy rights and discovery fights in a wide range of cases, including probate litigation.  For example, if the Echo’s recordings are discoverable, it could open up a new source of evidence for undue influence and incapacity cases.  While I don’t expect that many people are talking to Alexa about their estate plans, a recording of mom asking Alexa for local estate planning attorneys (or a good cookie recipe) could shed light on her mental state, her capacity, or whether there was anyone else with her who might be exerting influence over her.

Whether giving up a potentially large amount of privacy in exchange for this type of evidence is worth it is subject to debate, but it is important to know that these issues are out there and to consider the ways they might impact your practice.  And if only one thing is certain, it’s that evolving technologies will continue to impact all aspects of a trust and estate practice – from planning to administration to litigation.