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Comment by arca_vorago | Hacker News Reader

I don't understand the use of the 1st amendment in this case, which is about free speech, but Amazon is trying to avoid giving data to the gov which would fall under the 4th and 5th amendments. Does anyone understand their reasoning for this approach?

I would also like to add, And I said the same thing about Apple, this feels like public relations via the courtroom more than a genuine desire to protect data from the gov. Don't forget Jeff Bezos's CIA connections!

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It's a good question, and vidarh's response that "it's right there in the article: chilling effect" is clearly not helpful, since your question still applies without modification.

Looking through the memorandum, it appears that there are different levels of need/importance the government must establish depending on whether they are requesting information that could chill free speech. That is, warrants are granted more liberally for information that does not have a tendency to suppress speech (e.g., the date you filed for your car registration) than info that does (e.g., the list of books you've checked out at the library). The latter category must be shown to be more directly related to the issue of the case, rather than being merely a search for possibly-useful background info.

Amazon is arguing that (1) Alexa searches are of this second, more protected form of private information, and (2) the government has not met the higher burden of showing their importance to the case.

That, at least, is my reading of the memorandum. I am not a lawyer.

And, if you're correct, that's a reasonable case.

"You want us to turn over that information? You're going to have to meet your full burden of proving need before we do so." That's reasonable for a case about a device that sits in your house and is constantly listening.

It's right there in the article.

Amazon is arguing that handing over the data would chill speech by making people fear that conversations they would otherwise consider private may be used against them by government, and as such have a similar effect to direct censorship.

I have no idea about the strength of that argument, but that's the argument they made.

I'm not sure how they can say a reasonable person would consider it private if they're voluntarily recording it and sending it to a third party.

That's like the definition of not private.

It's only not private if you can't trust the information to be kept private, which is the central point of Amazons argument: the information is currently private; it will cease to be private if Amazon can be compelled to hand it over.

But doesn't that apply to, eg, bank records or other third party documents?

It's been US policy that third party record have no expectation of privacy.

Bank records would presumably not be considered expressive speech, and so it would be hard to argue that it would be protected under the 1st. And as you point out, the courts have already pretty much nixed privacy protections of third party records under the 4th.

I have no idea if Amazon has a snowballs chance in hell of making this work, but it's an interesting angle, and also seemingly their only potentially viable angle because of what you mention.

The point is that they're not arguing for privacy. If their argument is accepted, then privacy of the data is an incidental necessity in order to avoid the chilling effect on speech of removing the privacy.

It may very well prove entirely futile, but at least they're trying (though I have no illusion that their reasons are selfless - they have a strong vested interest in making sure people will trust having these devices in their homes)

Telephone conversations between two individuals are considered "private". Private is the opposite of public, not a synonym of "personal secret".

But emails stored on, eg Gmail are not.

I think this has more in common with that case -- where it's being maintained as a business record -- than a phone call.

Also, if the party you're on the phone with (legally) records the call, the courts can subpoena it. Why would this be different, even granting the (I think) inaccurate phone analogy?

Gmail is private too. You need a warrant, just like a telephone call.

But... They have a warrant.

Amazon is arguing that they don't have to turn over information in response to the warrant.

Yes, and Amazon's argument is more detailed than "it's private".

https://news.ycombinator.com/item?id=13714797

I thought it was strange too. I would suspect the caselaw involving the First Amendment provides more definition of the limits upon governments than the Privacy amendments, especially since this is such a novel set of facts with no easily applicable precedent. First Amendment seems to be more broadly protected than privacy anyways, so extending it to this set of circumstances would be ultimately useful.

However, their First Amendment argument would be more compelling if the search request was wider instead of specific. It looks like the request only wants a 48 hour period, so its not a dragnet kind of request (i.e., who checked out books on chemistry in the past 4 weeks?). In the event the ruling is against Amazon, I would guess the in camera evaluation will probably happen.

> "Don't forget Jeff Bezos's CIA connections"

There aren't "connections". Amazon is just building a private cloud for the CIA. There's nothing nefarious going on.

One of the things that they are arguing (per the article) is that _Alexa's_ speech is protected under the First Amendment (similar to a case that was decided in favor of Google relating to search results.)

As a non-lawyer and not legally trained it seems like 1st amendment has nothing to do with this but 4th and 5th has everything. This is scary. It means the 4th and 5th amendment has no power with these devices?

But there is a warrant:

> The tech titan has filed a motion to quash the search warrant for recordings

ps. Ianal

If that were the case Amazon would have provided the data rather than contesting the warrant the police issued to obtain the data.

The 4th amendment and 5th amendment don't protect you from having to hand over incriminating evidence pursuant to a valid warrant. If the government suspects e.g. you're part of a criminal organization and have tapes with your co-conspirators (for future blackmail purposes) hidden in your house, it can get a warrant and get those tapes. It can play those tapes to the jury. The only thing the 5th amendment protects you from is the government making you testify against yourself.

Those amendments only apply to the government. A corporation may arbitrarily restrict your rights and you have no recourse other than to avoid the corporation. This is why social media is a trap. It looks at first glance like a highly evolved town square but it is not. It is a private space masquerading as a town square, but one where you may be silenced for the wrong words.

The same applies to the alexa device you chose to put in your living room. Your private life now belongs to Amazon. The 4th amendment does not apply. Your privacy is now the property of a corporation that may do what it pleases with the information from your previously private home life.

Not a lawyer, but I imagine they have not ability to exercise the fifth amendment as it's not self-incrimination, and I believe only natural persons (i.e. not corporations) are protected by it.

Thanks I wanted to ask the same as a non-American. If this is protected then surely so is internet history, call metadata etc.?

They're arguing that the speech that is recorded and the generated responses are both expressive, and that's a key difference.

Their argument is basically that people are talking to or in front of their Alexa device, and that speech is protected, and if Amazon is compelled to hand it over, they argue it will have a significant chilling effect on speech by making people concerned they can not openly talk in their own home.

Ok so it's sort of like having your house bugged? They'd need a different warrant for that and presumably before the conversation occurred?

Yeah, and honestly I don't feel like the defense will hold up for much. It's not uncommon or unreasonable to request data from a company pertaining to a criminal investigation. It's not an overreaching request, they're asking for a narrow field of data, they have probable cause for a warrant. This is really not unusual from a criminal investigation standpoint, except for the interface in question being somewhat novel.

But the case has gotten national attention, and people are talking about privacy of services like this, so it makes sense for them to put up that "we're protecting your data" fight. But the only real way to protect your data from the government is simply to not collect it in the first place.

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