As our world becomes more intertwined with technology, Amazon Echo’s virtual assistant ‘Alexa’, and other similar devices, are increasingly likely to be used as evidence in the Prosecution of matters. These devices are listening to everything we say, however, the smart device typically has to be prompted by a ‘wake word’, at which point overheard conversations are uploaded and saved in the Cloud.
In the same respect, a ‘Fitbit’ tracks a person’s location via GPS, and that information could either be used in support of an alibi or as evidence proving someone was at the scene of a crime at a given time.
In 2015, James Bates of Arkansas, USA, was charged with first-degree murder of his friend, Victor Collins, after he was found dead in the hot tub at Bates’ home. The Prosecution lacked physical evidence, so sought to rely on the recorded data of Bates’ Amazon Echo, which was playing music during the night of the alleged murder.
Whilst Amazon initially objected to Subpoenas to provide the recordings, Bates gave permission for the data held by Amazon to be released to the Court. Ultimately, the recordings, in conjunction with the ‘steps app’ on his iPhone, corroborated Bates’ version of events and the charge against him was dismissed in November 2017.
Whilst this ‘smart data’ evidence has not yet been tested in Australian Courts, it is likely Prosecution will attempt to obtain these types of data when executing search warrants and through the use of subpoenas, particularly in cases where physical evidence is lacking or needs to be corroborated.
However, serious questions need to be asked about the reliability of such evidence, as it may be vulnerable to manipulation or distortion.
This new form of evidence, if attempted to be used by the Prosecution, will likely be subject to discretionary exclusions, such as the Lee discretion and Christie discretion, and under section 132B of the Evidence Act 1977 (Qld) on the grounds that the value of that evidence to the Prosecution case is outweighed by risk of prejudice to the Defendant. However, the exclusion of that evidence will differ on a case by case basis and is ultimately determined on the question of unfairness.
As a result, tech companies like Amazon, Facebook, Apple and Google are being called “surveillance intermediaries”, essentially standing in the no-man’s land between law enforcement and acting as the protectors of the public’s personal information and privacy. Those companies have the power to decide how easy or difficult it will be for law enforcement to access certain information, particularly in the way in which they evaluate the legality of Court Orders, such as subpoenas.
As our lives become evermore intertwined with technology, with our personal data increasingly outside of our control, we need to be ever vigilant of what we say and where we say it. The data from your trusted smart device may end up being Prosecution evidence.
Contact our Crime & Misconduct team on (07) 3009 6555 for a free initial consultation.