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December 15, 2021 | Cybersecurity Toolbox

Alexa is Watching

Vanessa Ferguson, Esq. | 2021 – 2024 Member, The Florida Bar’s Standing Committee on Technology

Amazon Echo Dot Mute

While technology can be useful in making our personal and professional lives work together more efficiently, we must understand that not everything that glitters is gold. This is particularly true when it comes to technological devices that listen such as Amazon’s Alexa, Google Home Apple HomePod, and other smart speakers.

With Amazon’s Echo Dot having seven speakers, it makes you wonder how many conversations “Alexa” has listened to without our acknowledgment. It may also make you wonder whether Alexa may have violated you or your visitors’ right to privacy. Furthermore, if you have a smart speaker at your place of work, it is essential that you take into consideration the attorney-client privilege and the effect these smart speakers have on the privilege.For a specific communication to be protected by the attorney-client privilege it must be shown that that communication was made in private and in confidence. With smart devices always listening, it can be difficult to determine whether a conversation is truly private.However, before going too far, it is important to understand the difference between a smart speaker listening and recording. While smart speakers must listen at all times to be useful, recording is not always a necessity. When Alexa or Google hears their wake-up command, the devices then begin recording and taking action on what is being said. We can compare this to hearing v. listening. While you may hear someone speaking, you may not be truly listening to them and taking in what they are saying. This is similar to Alexa’s listening and recording functions.Fortunately, both Amazon and Google devices allow you to see what exactly has been recorded and delete the recordings at any time. With Alexa, you can turn off voice recordings completely or auto-delete old recordings. Google also offers similar options. Google no longer stores audio recordings by default, thus requiring the user to actively opt-in to having their recordings stored. Google too has the option to auto-delete old recordings. When it speaking about smart speakers and smart devices generally, it is essential that we are purchasing devices created by entities that make privacy-by-design a priority. Privacy-by-design is an approach characterized by proactive rather than reactive measures, thus making privacy a default setting.Ultimately, is up to the attorney and/or consumer to review the settings on their smart devices and ensure that they comply with personal values and professional, ethical rules. One way to assure privacy and confidence when speaking with clients is to unplug smart devices when not in use. Another way is to review the settings on your devices to see how long recordings are stored for and to delete them regularly where appropriate.To conclude, in accepting the benefits of Amazon’s Alexa, Google’s Home, Apple’s HomePod, and other smart speakers we must also acknowledge the fact that some privacy rights may be lost. But our right to privacy and confidence in our conversations may not be lost so long as we use devices that implement privacy-by-design policies and we are familiar with the privacy settings on the smart devices we use.

Vanessa Ferguson is the managing director and attorney at Ferguson Legal, PLLC. Vanessa’s practice areas include business law, intellectual property and privacy law. She is a Certified Information Privacy Technologist and obtained her Intellectual Property certification from the University of Dayton School of Law. Vanessa is the secretary of the George Edgecomb Bar Association and sits on the board of directors of the Foundation for Community Driven Innovation. Vanessa is highly active in the Tampa community and her practice is dedicated to helping small business owners start, manage and protect their business.

This LegalFuel publication is intended for educational purposes only and does not replace professional judgment. Statements of fact and opinions expressed are those of the author individually and, unless expressly stated to the contrary, are not the opinion of The Florida Bar or its committees. The Florida Bar does not endorse or approve, and assumes no responsibility for, the content, accuracy or completeness of the information published. Any feedback should be provided to the author.