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Amazon and Google, the leading sellers of such devices, say the assistants record and process audio only after users trigger them by pushing a button or uttering a phrase like "Hey, Alexa" or "O.K., Google." But each company has filed patent applications, many of them still under consideration, that outline an array of possibilities for how devices like these could monitor more of what users say and do. That information could then be used to identify a person's desires or interests, which could be mined for ads and product recommendations.
For many, this could change the landscape as to whether these devices are acceptable. It may also open the door wider for open-source, less invasive devices such as Mycroft.
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Hey, Alexa, What Can You Hear? And What Will You Do With It?
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The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
F.S. Fitzgerald to Hemingway:
"Ernest, the rich are different from us."
Hemingway:
"Yes. They have more money."
(Score: 5, Interesting) by MrGuy on Sunday April 01 2018, @08:36PM (6 children)
Wiretap Act. [lawyers.com] This is a legal minefield, and companies who set out to do this risk HUGE fines and criminal liability.
IANAL, so take this all with a grain of salt, but I'm somewhat familiar with the topic, so...
For this device to listen in on communication in a home (where people have a reasonable expectation of privacy), you have to comply with laws in the state in which the communication takes place. The act covers listening in on any communications (not just electronic communication - the act covers oral communication) when the recording is done using a "device" and transmitted. Alexa and friends would almost certainly qualify as a "device" for this purpose.
Recording cannot be done without consent. Full stop. Who needs to consent depends on the state. Some states allow single-party consent (any party to a conversation can "consent" to being recorded). Some require all parties to consent (two-party consent). So, if my friend comes over to my house, in some states I can consent to recording our conversation by myself, and in others I can't. Consider this in an Alexa situation - if it's "always on," even IF Alexa has valid consent from me to monitor my conversations, in many states it can NOT record your conversation. Think about how hard that would be to avoid.
Consent needs to be explicit, not implicit - a company explicitly can NOT use a "you signed up for this in the terms of service" as consent. Consent needs to be specific to the conversation. This is why every time you call someone with a customer service, you hear a "this call may be monitored or recorded" message - you need to be explicitly notified about the recording every time. It's not sufficient for a company to say in their terms of service "By using our customer service line, you consent to the conversation being recorded or monitored" - it if WAS sufficient, it's what people would do.
In the current incarnation, you're effectively "consenting" to what you're about to say being monitored by explicitly invoking the service with "Hey, Alexa." (At least, that's the only reasonable reading under which Alexa is NOT already in violation of the wiretap act). Without that "trigger," there's no direct consent. This is a major, major problem. [littler.com]
The reason the wiretap act should be such a problem is that the act provides for direct monetary damages, without requiring a direct proof of harm - up to $10,000. The sheer scale of liability here SHOULD terrify companies considering such usage.
I'm sure there are arguments that would be used why the companies qualify as having "consent" based on terms of use (though similar arguments have explicitly failed in court, and in some states even if they were valid could not reasonably cover the case of a third party present in your home). I'm sure they could also argue that scanning communication for advertising purpose doesn't constitute "disclosure" or "use" of the contents of the communication as defined in the act (which seems at best a dubious reading, but they made the same argument for scanning e-mail for ad-generation purposes...). But at best, this is a major, major stumbling block that would need to be overcome, and the solution doesn't seem obvious.
(Score: 1, Interesting) by Anonymous Coward on Monday April 02 2018, @12:57AM (3 children)
Indeed. I find this curious as well as concerns the Wiretap Act.
The only thing I can figure is that this will be ruled a-ok when it's challenged. The official reasoning will be wishy-washy hand-wavy and say it's ok because "with a computer" and "on the internet" and the masses will rejoice.
The actual reasoning will be that the elites are finally getting the telescreens 1984 promised them.
If enough people point out what you've pointed out, the Washington Post or New York Times will helpfully publish something to let you know this one weird old reason why the Wiretap act doesn't work the way it's worked for years all of a sudden. Expect Snopes to back them up. We all live in a simulation. Not a cool one where we get to be sexy and have super powers and drive deloreans. No, we live in a simulation that's created and defined by the news sources we believe are credible, when the news sources we think are credible are actually propaganda outlets.
This simulation is the kind where chocolate rations have been increased and say thankya to big brother!
(Score: 2) by MrGuy on Monday April 02 2018, @02:27AM
I share some of your cynicism that being a big corporation has the potential to make some things "above the law." That said, the fact that this is "with a computer" (i.e. using a device) and "on the internet" (i.e. transmitting by wire) are PRECISELY the two aspects that constitute a violation of the act in the first place.
(Score: 1, Insightful) by Anonymous Coward on Monday April 02 2018, @02:28AM (1 child)
Laws can be changed. Very quietly too. Especially where big money and political influence are concerned...
(Score: 1, Insightful) by Anonymous Coward on Monday April 02 2018, @05:58AM
It will be as usual: If you or I do it, then it's certainly and completely illegal. Go to prison. If one of the too-big-to-fail guys do it, then it's respectable and completely above the water. Everything is illegal and legal at the same time. It's not what you do, it's who you know.
(Score: 2) by GreatAuntAnesthesia on Monday April 02 2018, @10:27PM (1 child)
All nullified by four little letters:
E U L A
(Score: 2) by MrGuy on Tuesday April 03 2018, @12:53AM
Nope. Not how the wiretap act works.
What you're arguing is that an EULA would be sufficient to constitute "consent." That's not how consent works in this context - there's significant precedent that "consent" must be express, and not implied. It specifically can NOT be buried in terms and conditions. There must be a specific act of consent. Again, consider my example of the recording you hear all the time of "This call may be recorded for training and quality purposes." They have to give you that express notice at the time of the recording. "You already consented to this before" doesn't count. There are a lot of purposes for which implied consent, or consent as part of an EULA, might be binding. This isn't one of them. See below:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/06/the-fccs-broadband-privacy-regulations-are-gone-but-dont-forget-about-the-wiretap-act/?utm_term=.fbe6034bbdb4 [washingtonpost.com]
https://www.cdt.org/files/privacy/20080708ISPtraffic.pdf [cdt.org]
And even if implicit consent in an EULA was sufficient, that's insufficient in any state where ALL parties to a conversation must consent. I might have given implicit consent to allow Amazon to listen in to my conversations. If you come over to my house, you have not given that consent. Recording that conversation without your consent would fall afoul of the law. It's the burden of the person being recorded to obtain consent - Amazon can't pawn off on my the responsibility to obtain your consent.