What You Say Can Be Used Against You

The 5th Amendment to the U.S. Constitution guarantees that you cannot be forced to testify against yourself.

All that is about to change and I don’t mean that the Constitution is going to change.

Like the Apple-FBI fight earlier this year, Amazon is in a fight with the law and I don’t think it is going to come down the same way.

In Apple’s case, the Feds invoked a 200+ year old law to try and get Apple to develop new software to hack one of their phones.

In this case, police in Arkansas want Amazon to turn over the data from a defendant’s Amazon Echo that Amazon already has in its possession.  Amazon, so far, has refused to turn over the data.  Since the Echo doesn’t have a right against self incrimination or the incrimination of its owner, I am not clear what Amazon’s plans are.

They have already turned over purchase records and other account information – just not the data from the defendant’s Echo.

Amazon says that it will only turn over the data upon presentation of a proper warrant – one that is valid and legally binding, not overly broad or otherwise inappropriate – whatever that means – they are not explaining, but I am sure they will explain, eventually, to the court.

The case in question is a murder case.  A friend of the defendant’s was found floating in the defendant’s hot tub, somewhat worse for the wear – i.e. dead.

The police want to hear what he told his Echo and what his Echo told him.

The police already know, they say, how much hot water he used – due to a smart water meter.

I think, eventually, Amazon will turn over the data.  Whether the defendant asked his Echo “Hey Amazon, how do I kill my friend” or “Hey Echo, Can I get bleach from Amazon today?”

But what is going to be true in the future is that there is an amazing amount of data about you that can be used against you.

Whether it is GPS data from your phone, location and other data from your car or information from your water meter, there is an amazing amount of data about you.

Your smart TV is listening. Maybe so is your baby monitor.

Consider that many people have Echos in their bedrooms.  Then consider what might be said in your bedroom.  Do you want to reconsider whether that Echo in your bedroom is a good idea?

Some people have webcams inside their house.  More amazingly, some people have webcams in their bedrooms (there was a recent story about a webcam in a Houston family’s kid’s bedroom that went viral on the Internet, no doubt with some inappropriate footage.

The framers of the Constitution never considered that there would be an Internet of Things and the implications thereof.

This case is a murder case and I am sure that Amazon is grandstanding to make sure that its customers understand that it takes privacy seriously, but I predict they will turn over the data.

You may recall a couple of months ago the Director of National Intelligence said that he didn’t care much about encrypted phones because there was so much other data available for them to hack.

Guess what he was talking about?  Yup, that is it.

And while the NSA has some of the best and the brightest in terms of  hacking into devices, if recent news accounts of various IoT breaches are any indication, hacking many of these devices is like taking candy from a baby.

So while we do not know how the Amazon story will wind up, it is different than the Apple story because Amazon CAN turn over the data.

Here is an interesting question.  What if Amazon does not want to turn over the data because they are collecting more data than we think they are?  I know that borders on conspiracy theory, but ….

And, of course, subpoenaing your water heater is not limited to murder cases.  It certainly could apply to civil lawsuits as well.

Consider this.  Could your Amazon Echo testify against you in a divorce case?  Or your webcams?  Or any other appliance in your house.  Or even your car.  There is a lot of data in them there devices.

And, for those of you with legal expertise, ponder this.  In both criminal and civil cases, parties may have a “duty to preserve”, meaning that you are not allowed to destroy (read: delete) any evidence that may be relevant to the case.

How, exactly, do you preserve the data in your water heater?

Do you even know what data might exist in smart devices?

What if the data is stored in the cloud?  By a third party.  Do you even have the ABILITY to preserve it?  Who pays to preserve it?

There is NO legal precedent in this area of law.

Could you be held in contempt or lose a case because you didn’t preserve the data in your smart TV?  Seems far fetched, but I promise you, at some point, it WILL come up.

Just food for thought.

Information for this  post came from International Business Times.

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