I was skimming my news feed this morning when I came upon an article from technology media company Engadget titled, “Amazon refuses to hand over Alexa info for murder investigation.” The article highlighted a murder investigation where prosecutors had a judge issue a warrant to Amazon for recordings on the night in question that may aid the investigation against the prime (no Amazon pun intended) suspect. Amazon insists the recordings by Alexa are protected by the First Amendment and therefore the demand is subject to a “heightened standard,” meaning that prosecutors must prove that they can’t find the information elsewhere and must demonstrate a compelling need for the recordings.
Currently, there are eleven states that require the consent of every party to a phone call or conversation in order to make the recording lawful: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties.1 Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. In addition, thirty-eight states and the District of Columbia have passed similar “one-party consent” laws.2
I have heard countless stories from insureds and public adjusters about conversations they had with the insurance company adjuster when they come to inspect after a loss. It usually goes something like this:
Insurance Adjuster: Tell me how the damage to XYZ happened.
Insured: Well, I was away at work, when I came home water was pouring from everywhere…
Insurance Adjuster: Don’t worry, I can see what happened and you’re definitely covered. We’ll be in touch.
After a few weeks, the insured gets a denial letter in the mail and the insurance adjuster denies ever confirming coverage with the insured or public adjuster during their conversation. What if the insured had a smart device recording the entire conversation with the insurance adjuster? Could we use a conversation recorded by a smart device against the insurer? Does the insurer have the right to subpoena recordings from these devices if they were a party to the conversation?
With our homes and businesses increasingly becoming “smarter,” devices like the Amazon Echo and Google Home could potentially be used as witnesses and record conversations of individuals unknowingly. Currently, these devices don’t have the capability of recording entire conversations and are only activated when you use the “wake” words, but it won’t be long before either of these companies or a third-party developer comes up with a “voice memo” or “voice recorder” application that enables these features.
More than likely, a case that has damaging audio recording on either side concerning the validity of a claim or credibility of a witness would end up settling before going to trial. However, it’s only a matter of time before this becomes an issue. I leave you with a mildly related unwritten rule of sports known by every athlete, “what happens in the locker room, stays in the locker room.”
1 18 U.S.C. 2511(2)(d).
2 Please consult your local state laws regarding recording conversations. This article is not meant to be an accurate depiction of your state’s laws regarding recording conversations and should not be considered as such.