IS YOUR SMART SPEAKER A SNITCH? EXPLORING THE LEGAL AND PRIVACY DANGERS OF VOICE-ACTIVATED DEVICES

Author: Carolyn Chin, Senior Editor

Introduction

Smart speakers like Alexa, Siri, and Google Assistant are convenient, but they might also be listening a little too closely. In a Consumer Affairs study, it is estimated that there is at least one smart device in 57% of U.S. households.[i] As a result, law enforcement has been able to rely on these smart devices in criminal investigations and privacy violations.[ii] For example, smartwatches are playing key roles in criminal investigations and trials as evidence to piece together a timeline of events.[iii] In a 2015 case, a woman claimed she had been sexually assaulted during a break-in.[iv] However, her Fitbit revealed she was up and moving around when she told detectives she had been sleeping, thus discrediting her testimony.[v] With the increase in reliance on these smart devices in households, the question arises: Can your smart speaker snitch on you?

How Smart Speakers Work

In order for smart speakers to “listen,” they constantly wait for specific wake words, but they do not start recording until their activated.[vi] These key wake words entail phrases like, “Hey Siri,” “Alexa,” and “Okay Google.”[vii] However, accidental activations happen frequently, raising some concerns about unintended recordings capturing sensitive conversations[viii] and stored voice data being accessible to law enforcement or hackers.[ix] One study of these accidental activations comes from Northeastern University.[x] This study found that smart speakers accidentally activate and record conversations sometimes up to 19 times a day, and the length of recording is dependent on the type of device but can record up to 43 seconds.[xi] The study also found that the devices are not consistently recording conversations, but that some accidental recordings are triggered from dialogue in television shows.[xii]

Smart Speakers and Court Proceedings

The main issue revolving around smart speakers recording conversations is whether smart speakers can be used as evidence in court.[xiii] As it is seen in similar cases using smartwatches as evidence in criminal investigations,[xiv] the same approach is applicable to smart speakers.

Law enforcement often use search warrants and subpoenas to obtain smart speaker evidence from Amazon and Google hoping to find evidence to place suspects at the crime scene or find a motive for the crime committed.[xv] However, this type of evidence will likely be subject to analysis by technical experts, addressing questions about the accuracy of any data, clarity of audio recordings, and possible tampering with the device.[xvi] However, a device owner could object to the government’s efforts to access this data by arguing it is an unreasonable search and seizure under the 4th Amendment,[xvii] prompting the government to have to show probable cause for conducting the search.[xviii] On the other hand, criminal defense lawyers use smart speaker data in pursuit of exculpatory evidence and alibis.[xix] In civil cases, the owner of the device could claim that the data is private and should not be subject to disclosure.[xx] This would then be resolved by the court having to weigh the owner’s privacy interests with the other party’s need for the data to prove their claims.[xxi]

This was seen in a case involving an Arkansas man accused of killing his friend, a former police officer, after a night of drinking.[xxii] The prosecutor had sought recordings from the Defendant’s Amazon Echo smart speaker as evidence in the case; however Amazon rebuffed the request.[xxiii] Eventually, the Defendant voluntarily handed over the recording and Amazon provided the data to the prosecutors.[xxiv] This ultimately led to finding no useful evidence in the investigation, but gave Amazon recognition for protecting a client’s privacy.[xxv]

As a result of the increase litigation demands for stored smart device information, each company tends to have their own policy on how to handle these requests. In the Arkansas case, Amazon pushed back on the demand for information both due to the request being “overbroad” and in the interest of protecting its customer’s data.[xxvi] When consumers purchase these devices, it is often found that the speaker’s manufactures own the data, not the individuals who own the speakers.[xxvii] This is due to customers accepting and agreeing to the manufacture’s privacy policy in the initial set-up of a smart speaker device.[xxviii] In other circumstances, when there are subpoenas or search warrants for data, the company may notify users of a request for data unless the order itself forbids it.[xxix] However, these smart device companies prioritize requests based on urgency.[xxx]

Smart Speakers and the Fifth Amendment

Legal questions surrounding the issue of collecting data from smart speakers also arise under the Fifth Amendment.[xxxi] Some critics even say requiring this kind of information is like having someone testify against themselves.[xxxii] Although courts have ruled that fingerprints and facial recognition can be compelled to unlock phones from third parties without violating the Fifth Amendment, the debate of whether a smart speaker voice recording falls under the same category is yet to be officially decided. But as of now law enforcement may request this information.[xxxiii]

Conclusion

Until the law catches up to the state of technology, users may benefit from taking steps to prevent your smart speaker from snitching on you.[xxxiv] This may involve turning off your speaker’s voice history, muting the microphone when it is not in use, regularly deleting past recordings, or avoiding discussion of sensitive topics near smart devices.[xxxv] Overall, if you are law-abiding, your biggest concern is most likely the protection of your privacy, not prosecution. But as smart devices become more common in legal cases, the line between convenience and surveillance is getting thinner. So: Is your smart speaker a snitch? Maybe not yet—but it’s definitely a good listener.

[i] Collin Blinder, Average Number of Smart Devices in a Home 2025, CONSUMER AFFAIRS (Apr. 23, 2024), https://www.consumeraffairs.com/homeowners/average-number-of-smart-devices-in-a-home.html.

[ii] David Moser, The Role of Smart Devices in Police Investigations, POLICE1 (Aug. 27, 2019), https://www.police1.com/police-products/investigation/computer-digital-forensics/articles/the-role-of-home-devices-in-police-investigations-fvgBU0PswYW3Jhvm/.

[iii] Hannah Fontaine, The Rise of Smartwatch Data in Criminal Cases, HARVARD UNDERGRADUATE L. REV. (Spring 2020), https://hulr.org/law-in-the-news/the-rise-of-smartwatch-data-in-criminal-cases.

[iv] Id.

[v] Id. 

[vi] Richard, How Does a Smart Speaker Work: Exploring AI, Voice Recognition & Security Features, SMART HOME ACE (Jul. 14, 2024), https://smarthomeace.com/how-does-smart-speaker-work/.

[vii] Id.

[viii] Christopher Escobedo Hart, Does Accidental Listening by Smart Speakers Raise Compliance Concerns?, FOLEY HOAG (Feb. 21, 2020), https://foleyhoag.com/news-and-insights/blogs/security-privacy-and-the-law/2020/february/does-accidental-listening-by-smart-speakers-raise-compliance-concerns/.

[ix] Katherine Snow Smith, Smart Speakers Offer New Legal Challenges as Privacy goes Public, THE LEGAL EXAMINER (Oct. 22, 2020), https://www.legalexaminer.com/home-family/smart-speakers-offer-new-legal-challenges-as-privacy-goes-public/.

[x] Hart, https://foleyhoag.com/ (last visited Mar. 2, 2025).

[xi] Id.

[xii] Id.

[xiii] Moser, supra note ii.

[xiv] Fontaine, supra note iii.

[xv] John Carney, Exemplary Evidence: “Smart Speaker Companions May Be Informants”, CARNEY FORENSICS BLOG (Jan. 26, 2021), https://www.carneyforensics.com/minnesota-lawyers-exemplary-evidence-smart-speakers-companions-may-be-informants/.

[xvi] Could Your “Smart House” be Called as a Trial Witness, CRIMINALDEFENSELAWYER, https://www.criminaldefenselawyer.com/resources/could-your-smart-house-be-called-trial-witness.html.

[xvii] Id.

[xviii] Id.

[xix] Carney, supra note xv.

[xx] Could Your “Smart House” be Called as a Trial Witness, supra note xvi.

[xxi] Id.

[xxii] Elliot C. McLaughlin, Suspects OKs Amazon to Hand Over Echo Recordings in Murder Case, CNN (Apr. 26, 2017), https://www.cnn.com/2017/03/07/tech/amazon-echo-alexa-bentonville-arkansas-murder-case/index.html.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] Smith, supra note ix.

[xxviii] Id.

[xxix] Sidney Fussell, Meet the Start Witness: Your Smart Speaker, WIRED (Aug. 23, 2020), https://www.wired.com/story/star-witness-your-smart-speaker/.

[xxx] Id.

[xxxi] Marguerite Reardon, Your Alex and Fitbit can Testify Against You in Court, CNET (Apr. 5, 2018), https://www.cnet.com/tech/mobile/alexa-fitbit-apple-watch-pacemaker-can-testify-against-you-in-court/.

[xxxii] Fontaine, supra note iii. 

[xxxiii] Ifrah Law, Alexa and Fifth Amendment Law, IFRAH LAW (Jan. 17, 2017), https://www.ifrahlaw.com/crime-in-the-suites/alexa-and-fifth-amendment-law/.

[xxxiv] Carlos Paras, Smart Speaker Privacy Concerns – How to Protect Yourself, DIY SMART HOME SOLUTIONS (Nov. 20, 2024), https://www.diysmarthomesolutions.com/smart-speaker-privacy-concerns-how-to-protect-yourself/.

[xxxv] Id.