By: Rishabh Saumya
“Alexa raise your hand”. The problem is Alexa has no hands or any other human feature. We know Alexa- that’s the name used by Amazon for its virtual personal assistant, most frequently invoked on its echo in-home smart speaker. It may not have a face but the program can be treated as potential evidence to a case. With the proliferation of Alexa in the Indian market, it is necessary to examine the consequences of the said technological advancement. Therefore, it is better for the Indian Courts to trace the nature of the device and make necessary laws. Through this article, the author will delineate the previous instances where the Alexa is used as evidence and its analysis in Indian Law that how this device can be used as a shred of potential evidence to make the criminal justice system technologically efficient to punish the offender when found guilty and by enrolling this, will also show the violation of human rights if not settled judicially or legitimately.
Unfolding the realm of Amazon Alexa
A virtual assistant is also known as an artificial intelligence assistant, which means they understand what you’re asking for, and learn your preferences, almost like a human assistant. Radio Rex is the first voice-activated toy developed in 1911. Currently, there are many virtual assistants which are slowly overpowering society with their upgrading features. Amazon Alexa, Siri, Google Assistant, etc. are few virtual assistants which are making the life of users more comfortable. Among these Amazon Alexa is used by most users all over the world. Amazon Alexa is Amazon’s cloud-based voice service available on hundreds of millions of devices from Amazon and third-party manufacturers. It is first developed as Amazon Echo smart speaker and the echo dot, echo studio, and amazon tap speaker. It is used as a home assistant and can control various home devices like light on-off, fan on-off, and several other smart devices using its home automation system. It is used for voice Interaction; playing music, providing information, reading audio books, etc. It is available in different languages such as English, French, German, Spanish, Italian, Portuguese, Japanese, and Hindi. The virtual assistant was developed for fun and to make the life of people more comfortable but with the passage of time, the commission of the crime by the offender has drastically changed due to technological development and it is acting as a catalyst for the courts to impart justice.
Contemporary instances: Alexa used as Evidence
The Arkansas Case– In November 2015, James Bates was charged with 1st -degree murder of Victor Collins in his home. The case gained national attention because, for the very first time, Alexa was treated as evidence in the court. Amazon provided the voice recording with the consent of the accused. But the court found no such crucial information and Bates got discharged from the Court.
Further, in the Double Murder Case of New Hampshire, in January 2017, Timothy Verrill was accused of murdering (stabbing multiple times) Christine Sullivan (48 years) and Jenna Pellegrini (32 years) at the Farmington home but the accused pleaded not guilty. During the investigation, police found the amazon echo devices on which the prosecutor believed that it might contain some pertinent voice recordings. After that, the Court in the State of Hampshire v. Timothy Verrill observed that servers or records maintained by Amazon.com had recordings made by the Echo smart speaker from the period of 27th January to 29th January 2017,and such information containedevidence of crime against the accused. Therefore, the court directed Amazon to produce the recording for the said periods made by echo smart speaker with Alexa voice command capability.
Florida Murder Case– On 12th July 2019, Silvia Galva (32 years) was killed suspiciously and it was alleged that her boyfriend Adam Reechard Crespo (43 years) who was a prime suspect in this case might have killed her by stabbing. During the probe, police found a smart home device i.e., Amazon Alexa echo dot, and believed that it might have voice recordings of 11th and 12th July 2019 which could be crucial evidence in solving this mysterious death. After that the police department had received the recordings but according to the Democrat-Gazette, Amazon spokesperson said that the information of an individual is only shared when there will be a legally valid and binding order from the court and said that give the recordings only after the legal team consented with the Amazon. After analyzing the recordings, The Prosecutors said that there was no evidence in the recordings and the Judge exonerated Adam Reechard Crespo from all charges.
The aforesaid mentioned instances are of the USA which is a common law country. India also being a common law country has adopted and made changes in various laws previously by observing the US court Judgments. Therefore, it is necessary for the Indian Government to make changes in evidence law with technological advancement.
Scanning the Evidentiary Value of Alexa in India
The Evidence Act, 1872 [“the Act”] is a colonial law that is evolving with technological advancement. As crime and its modes of commission have been increasing rapidly, this leads us to add electronic gadgets as evidence. The concept of electronic evidence has been introduced through the Information technology Act, 2000 [“IT Act”], and further amendments were made in the Act, Indian Penal Code, 1860, and some other related provisions. As per Section 2 (t) of the IT Act,electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche. Electronic records can be treated as evidence under Section 3 of the Act which says that ‘evidence’ means and includes all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
Alexa which is a technologically advanced artificial intelligence records our data in the form of voice recordings that’s why it can be treated as documentary evidence. Even this device has been called as evidence by the foreign court in the aforementioned instances. In India, the Supreme Courtin K. Velusamy v. N. Palanisamy observed that the telephonic conversation recording could be valid evidence according to Section 3 of the Evidence Act and Section 2 (t) of the IT Act subject to certain conditions. The voice recordings of Alexa can be extracted as evidence in two ways, i.e., cloud storage and voice record History
- Cloud Storage
Alexa is connected to Amazon’s massive servers where the servers are programmed in such a manner that each customer has a dedicated personal account with their files. The device does not record each and everything all the time. It starts functioning when it listens to the wake word from the person by identifying acoustic patterns that match the wake word. Then the person asks Alexa to know about something which is sent to Amazon’s cloud where the request is processed. Hereinafter, Alexa responds to the request accordingly and that voice recording is saved or stored in the cloud (big server).
Admissibility
It is practically impossible to present the voice recordings of Alexa stored in the cloud as evidence in court but it can be made possible through the procedure and conditions of proof of an electronic record laid down in Section 65B of the Act which overrides the effect of Sections 63 and 64. As per Section 65 B of the Act output from the electronic record like big servers, cloud storage, etc is extracted in the form of printout or data copied on CD/ DVD,etc. produced by the computer is rendered admissible in the court of law by following certain conditions which are provided. The voice recording provided by the concerned authority should give a certificate for that copied part according to Section 65 B which is mandatorily held in Anvar P.V. v. P.K. Basheer. This evidence should be provided by the authority only with the permission of the person of that device otherwise, it will lose the faith of users who share their personal information with Alexa.
- Voice History of Alexa
A person can listen to their voice history of a particular date or time by visiting the settings. If the person has saved the password for the Alexa app or the phone using his fingerprint, the police or the court cannot compel the accused to give his evidence which will ultimately lead to self-incrimination. However, this is still an unsettled law in India.
Self- Incrimination
Article 20(3) of the Constitution of India says that no person accused of an offense shall be compelled to be a witness against himself. The court has further interpreted the word witness to include oral as well as documentary evidence. In Bombay v. Kothi Kalu Oghad, the court observed that a witness offers testimonial and non-testimonial evidence, and only in the former, an accused may be considered as a witness against himself.
The court must consider the three important points regarding the disclosure of the password for the Alexa app or the phone in a different mode. First, whether the password in itself is treated as testimonial evidence and compelling to give such password amounts to a violation of Article 20 (3), and second, whether the court should adopt the doctrine of foregone conclusion to present this password as evidence? Third, whether a password saved through fingerprint, face scan, or Biometric password can amount to a violation of Article 20 (3) of the Constitution of India?
Firstly, the court must consider the password as a safe combination. Referring to the State of Bombay v. Kathi Kalu Oghad, where the court held that the testimonial act can be considered to provide personal knowledge about relevant facts. A nod or head shake is as much a testimonial or communicative act in the same sense as are spoken words. When the person is compelled to reveal the content stored in the person’s mind and is forced to memorize a sequence of numbers, letters, or other characters that he/ she may mentally associate with other devices amounts to a violation of Article 20(3). So, the compelled recollection and subsequent disclosure of a memorized password is quintessentially testimonial. Therefore, the password is protected under article 20(3) when the court considers it as personal knowledge (knowledge which is stored in the mind) but if the court considers the password as physical evidence having an independent existence then the same cannot be protected under article 20(3).
Secondly, the court must consider adopting the doctrine of foregone conclusion which is the exception to the general rule provided in Doe v. United States. This doctrine says that the government may compel the production of testimonial password when the government is in a position to know the reasonable particularity, the location, possession, and authenticity of that evidence but this doctrine should not be accepted due to heavy amount of data and sensitive records that are stored in the individual’s phone and Alexa device. The full contents stored on the device cannot be given to law authority just on the assumption that it may contain some evidence in it. Human beings store different types of recordings or private things on phone and treat Alexa as personal intimacies of the home. This leads to violation of the right to privacy which must encompass and protect the personal intimacies of the home held in Justice K.S.Puttaswamy (Retd.) v. Union of India.
Thirdly, this situation arises when the person saves the password by fingerprint. If the court considers revealing fingerprint passwords as a physical act then it is not self-incrimination. The distinction between numerical password and fingerprint is established in United States District Court for the District of Columbia that in the former, the person has to reveal the memorized password from his mind however, the latter does not require any mental effort to reveal the said passcode because, in this, his specific physical activity is sufficient to reveal the password. On the contrary, if the court considers this specific activity as a compulsion then it will be protected under Article 20(3).
There are various issues related to electronic evidence like WhatsApp chat, voice notes, etc. are pending before the Court but if the Indian government wants to make our criminal system more effective and efficient then these issues need to be considered on a priority basis. The Indian Legislature has to observe the different realms of technological advancement and its consequences all over the world so that they can amend the law.
CONCLUSION
An initiative has been taken by MeitY in 2017 for appointment of expert for electronic evidence that will to provide aid to the investigators and prosecutors as per the requirement. The Information Technology Act, 2000 empowers the Central Government under section 79A to notify any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence for the purposes of providing expert opinion on electronic form evidence before any court or other authority. But it seems like the journey of this scheme has just evolved on paper and not in practice. There is a need for reformation in implementation of the said scheme and further needs a concrete law so that the reformation takes place easily.
In a nutshell, this article is an attempt to examine the evidentiary value of Amazon Alexa which can be a key to the locker in a criminal investigation in the near future. After examining, the contemporary cases around the globe related to the Amazon Alexa, which is a virtual assistant to a person where they can share information; make use of it to control the home appliances, etc. Technological advancement has created a complex situation for the police authority to investigate the crime because of the lacunae between law and advanced technology. Due to the unsettled position of the aforementioned issues in India, the author has endeavored to delineate the realm of Virtual Assistant i.e. Amazon Alexa and establish that the court must consider issues like self-incrimination and privacy of the person being infringed arising out of the said device. Resolving these issues will open the flood gates for other Virtual Assistants like Siri (Apple), Google Assistant, etc. as well as for other techno-advanced gizmos which will be a part of the future.
[Rishabh Saumya is a 4th Year law student at the Faculty of Law, Jamia Millia Islamia, New Delhi. His research interests are Criminal Law, Technology Law, Space Law and Constitutional Law.]