“Alexa, I Want the Truth!”
A Prosecutor’s Guide to the Collection and Use of Evidence from Virtual Assistants
On November 21, 2015, James A. Bates hosted three men—Victor Collins, Owen McDonald, and Sean Henry—at his Bentonville, Ark., home to watch football. Henry left late in the evening. The remaining men spent time in the hot tub, drinking. McDonald was reportedly back at his home by 1230. Later the morning of the 22nd, after Bates called 911, police and medics found Collins dead in the hot tub and noted the rim of the hot tub and concrete patio appeared to have been recently sprayed with water. Collins had a black eye. Bates had bruises and scratches on his shoulder, back, and stomach. Collins’s cause of death was determined to be primarily strangulation with drowning as a secondary cause. . . .
During a search of Bates’s residence on December 3, the Bentonville Police seized an Echo device located in the kitchen. On December 4, the police emailed a preservation request to Amazon for all the records associated with the Echo and served a search warrant on Amazon. On January 29, 2016, the police obtained an extension of the warrant. Both the original warrant and the extension noted that law enforcement should search for and seize “audio recordings, transcribed records, or other text records related to communications and transactions” between the Echo device and Amazon’s servers during the 48-hour period of November 21 through 22, 2015, in addition to subscriber and account information—to see if the device might hold any clues about the murder in the form of audio recordings, transcribed words, text or other data.1
What do you call a home network of digital devices that control every appliance and function of your domestic routine? If you were to ask Siri (Apple’s virtual assistant), you would get a link to a webpage for the “internet of things” (IoT).2 In fact, the IoT is proliferating at break-neck speed—invading every aspect of life. Beyond mere entertainment, smart devices now influence medical care, fitness, security, indoor climate, environmental aesthetics, all manner of appliances, clothing, personal accessories, transportation, even beds and toilets.3 Among the most powerful devices in the IoT universe are the “virtual assistants,” like Amazon’s Alexa Echo and Google’s Voice, which are always on and always listening.4 Whenever a virtual assistant hears its “wake word,” it activates and records what is heard, as well as any given reply.5 Because little or no data is stored on virtual assistant devices,6 their function depends on access to powerful “cloud” computing—networked servers with the ability to analyze, record, and respond to users.7
Although cloud computing connects virtual assistant users to an unprecedented capability to command and control their world, it comes at the cost of enormous amounts of personal data being digested into the cloud.8 Thus, in a world where everything is heard and everything is connected, it requires no imagination to discern that criminal evidence can also be heard, created, and documented through the IoT, including virtual assistants.9
As illustrated by the case study of Arkansas v. Bates,10 prosecutors will likely face future scenarios requiring collection and use of information from the IoT. Thus, this article is organized into two main sections that aim to assist a military prosecutor in the collection and use of digital evidence derived from virtual assistants. The first section outlines the controlling legal framework for collecting and using digital content from virtual assistants, including important case law.11 In the second section, given the unique properties of digital content derived from virtual assistants and the custody interests of digital service providers, this article offers specific planning guidance to help practitioners implement their own strategy for data collection and use. This guidance includes specific consideration at each step of the evidentiary lifecycle, from warrant request to introduction at trial.
The Legal Framework
Arkansas v. Bates recounts one of a growing number of cases in which the government attempts to collect digital contents of potential criminal evidence captured by a virtual assistant.12 In Bates, the Alexa Echo was located in the kitchen near the back patio where Collins’s body was found, and witnesses indicated that the device was playing music during the evening gathering—suggesting that its operation resulted in the capture of some data that might shed light on events surrounding the mysterious death.13 Interestingly, a separate device in Bates’s home, a smart water meter, recorded that the home had used 140 gallons of water between 0100 and 0300 on the night of the murder, corroborating investigators’ observations that someone had recently hosed down the area surrounding the body.14 Although the government has now dismissed charges against Bates,15 the case highlights the importance of collecting evidence from the IoT and the likelihood that similar evidentiary scenarios will replicate frequently in the very near future.16 When that happens, a prosecutor’s use of the proper legal framework will ensure successful collection and admission of that evidence at trial. The following sections set out the proper legal framework, beginning with evidence preservation.
The Law of Data Preservation
One of the many functions available to a user of virtual assistants is the ability to easily review and delete data at any time.17 Because digital evidence can be highly perishable, a prosecutor should issue a preservation order to freeze the data as soon as possible. Both military and federal prosecutors enjoy broad authority to order data preservation. For military prosecutors, the authority for a preservation order is found in Rule for Courts-Martial (RCM) 703A(f)18 and invokes the parallel federal authority for data preservation found in the Stored Communications Act (SCA) at 18 U.S.C. § 2703(f).19
Besides invoking the correct legal authority, the careful prosecutor should also incorporate proper terminology20 into the request that is expansive enough to cover all possible content from all known sources.21 Additionally, as the need arises in specific cases, a practitioner should consider adding clauses in the preservation request for delayed customer notice and future data preservation. With regard to delayed customer notice, digital service providers do not typically report when data is merely subject to preservation (since the providers are not yet disclosing any user information), but there may be unique commercial practices or user agreements that could result in case-damaging disclosure to a suspect.22 Where case-appropriate, avoid this scenario by making a simple request for delayed notice.23 Likewise, a request to preserve future categories of data may be important, depending on the type of data and unique case factors at play in an investigation.24 While neither delayed notice nor future preservation are specifically addressed by the text surrounding preservation rules, the concepts are rooted in the same statutes discussing compulsory instruments and can be important facets of an ongoing investigation.25 Notwithstanding a lack of case law on these specific clauses, the SCA gives data holders a complete civil defense for actions in “good faith reliance on . . . a court warrant or order . . . or a statutory authorization (including a request of a governmental entity under section 2703(f) [preservation orders].”26 And since preservation of data is distinct from actual disclosure, the risk of successful adverse litigation for these clauses is extremely low. Thus, digital service providers are incentivized to fully comply with reasonable preservation requests.
Once drafted, the preservation order must be properly served on the digital service providers. For Amazon, service of regular preservation orders, subpoenas, and search warrants (including emergency requests) are processed through an Amazon-specific platform called “Amazon Law Enforcement Request Tracker” (ALERT) that requires the requester to set up an account.27 Google prefers receiving all legal process through a central email address, but also accepts service through standard mail and fax.28 A preservation order is effective for ninety days, but it can be extended for an additional ninety days if necessary.29 This gives the prosecutor plenty of time to follow-up with a compulsory instrument for collection.
The Law of Data Collection
Under current regulations, there are three possible methods for collecting digital data: 1) RCM 703A(b)’s warrant process, 2) RCM 703A(c)’s “order” (with notice) process, or 3) an investigative subpoena under RCM 703(g)(3)(C).30 For the reasons discussed below, a probable cause warrant issued under the procedures of 703A(b) will usually be the best method for the collection of data generated by virtual assistants.31
Applying the Stored Communications Act
The Electronic Communications Privacy Act of 1986 (ECPA) and its Title II, the SCA, are the federal statutory framework for protecting digital information.32 Similar to the military framework, the SCA offers three options for compelling the production of digital information: a warrant, a court order, or a subpoena.33 By federal statute, the selection between these compulsory instruments depends on 1) whether the digital information contains a user’s “content,” 2) whether the information holder is providing “electronic communications” services (ECS) or “remote computing” services (RCS), and 3) whether the information (held by an ECS) is older than 180 days.34
The ECPA defines “content” as “any information concerning the substance, purport, or meaning of that communication.”35 An ECS is “any service which provides to users thereof the ability to send or receive wire or electronic communications,”36 and an RCS is “the provision to the public of computer storage or processing services by means of an electronic communications system.”37 For practitioners seeking to categorize a data holder in relation to virtual assistants and their associated cloud computing,38 the statutory definitions of ECS and RCS are particularly unhelpful.39 Sometimes it is easy to classify the type of data holder based on the item being sought. For example, an internet service provider (ISP) that is holding an unopened email for a user is an ECS. But these definitions begin to breakdown when scrutinizing data in the cloud.40 How do you classify the data holder of a music playlist? Or calendar alerts? Or dictation edits to a Google doc? The problem compounds when something that appears to be non-content, like a log of accessory activity, aggregates to reveal the daily “contents,” activities, and habits of a home’s occupants.41 For the practitioner, cloud computing is often a ubiquitous chimera that frustrates classification of content, non-content, ECS, and RCS. Importantly, recent precedent modifying the Third Party Doctrine and focusing on the privacy expectations attached to “content” has made the distinctions between new data, old data, ECS, and RCS nearly irrelevant.
The Third Party Doctrine
Before 2018, prosecutors could use court orders or subpoenas to compel most digital information instead of the more stringent warrant process.42 The “court order” process (from SCA section 2703(d) and RCM 703A(c) allowed the government to collect certain digital information if the government offered “specific and articulable facts showing that there are reasonable grounds to believe that the contents . . . are relevant and material to an ongoing criminal investigation.”43 The subpoena power is also broad, since investigative subpoenas can issue on the “low threshold of relevance.”44 These two warrantless compulsory tools survived Fourth Amendment scrutiny for several decades under the Third Party Doctrine that an individual who has voluntarily surrendered custody and control of evidence to a third party (like an ISP) has a diminished right to privacy in that evidence.45
Nevertheless, in 2018, the Supreme Court decided Carpenter v. United States,46 and, therein, cast serious doubt on the application of the Third Party Doctrine to various types of digital information. In Carpenter, the defendant challenged the application of the third party doctrine, specifically, government use of a court order under SCA section 2703(d),47 to collect his cell-site location information (CSLI) without a warrant.48 The Supreme Court sided with the defendant and held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI,” and, absent exigent circumstances, “the Government will generally need a warrant.”49 Although the Court claimed that Carpenter was a “narrow” decision, the opinion’s language suggests broader applications:
We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.50
Thus, Carpenter is likely not limited to the specific “location” data of CSLI, but includes the private information, collection methods, and “inescapable” sorts of data typified by CSLI—regardless of the duration or medium of storage or the precise type of digital services being utilized. This indicates that any voice recordings captured by Bates’s Alexa Echo enjoyed Fourth Amendment protections. Even before Carpenter, the Supreme Court was telegraphing the expansion of Fourth Amendment protections for digital information.
In the 2014 decision of Riley v. California, the Court held that the warrant exception for searches incident to arrest does not apply to cell phone content.51 The Court based its decision primarily on the quantitative and qualitative characteristics of private data on cell phones that indicate a socially-recognized reasonable expectation of privacy. Speaking quantitatively, the Court noted:
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed . . . . Third, the data on a phone can date back to the purchase of the phone, or even earlier.52
Speaking qualitatively, the Supreme Court noted the pervasiveness of cellphones and the types of data they contain, such as “browsing history” and “application software” that “form a revealing montage of the user’s life.”53 These digital aspects of cell phones are certainly not unique.54 In the same way, data captured by virtual assistants and stored in the cloud is comprised of many private types of information that can be retained indefinitely,55 and only a single type of data can be used to reconstruct one’s private life—especially since most of these devices collect information from inside a home.56
Because of the expanding and seismic impact of Supreme Court decisions, military precedent has yet to develop; but the Court of Appeals for the Armed Forces (CAAF) signaled support for the Third Party Doctrine in the 2017 case of United States v. Langhorne.57 In that case, CAAF relied on Supreme Court precedent (the same precedent that was later considered and rejected in Carpenter), and found that Langhorne had no reasonable expectation of privacy in his Facebook account after giving his login information to a friend over a phone line which he knew was being monitored while in confinement.58 Separately, in a string of email privacy cases, CAAF found that individuals have a reasonable expectation of privacy in personal email accounts,59 but no expectation of privacy in personal password-protected government email accounts (where the log-in banner gave notice of monitoring),60 including government email accounts breached by routine operations of system administrators.61
For comparison, the United States Court of Appeals for the Sixth Circuit considered a case where the government used the SCA’s subpoena and court-order process to compel email messages from a suspect’s internet service provider (ISP).62 In United States v. Warshak, the Sixth Circuit held that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP,’” and “to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”63 Together, this precedent reasonably indicates that Fourth Amendment protections extend to the data associated with virtual assistants.
The Supreme Court’s emphasis on the nature of private information at issue in Carpenter and Riley signal that nearly all data collected from virtual assistants should be categorized as “content” that will require a warrant (under RCM 703A(b)) in the absence of exigent circumstances.64 A side benefit of using the warrant process is that distinctions between ECS, RCS, and the length of storage no longer matter, since the probable cause standard is sufficient to compel all content.65 Two types of data—subscriber information and some types of transaction history—can still likely be obtained without a warrant66 (and may assist in the development of probable cause), but this type of data will rarely be the collection priority for investigators needing access to data gathered by virtual assistants, as was the case for prosecutors seeking recordings in Arkansas v. Bates. Moreover, the First Amendment litigation in Arkansas v. Bates highlights another potential hurdle for trial counsel.
First Amendment Implications
Recent cases indicate that digital service providers are fiercely litigating production of content gathered by virtual assistants,67 primarily on First Amendment grounds.68 Apart from obscenity precedent,69 there is little case law on the digital cross-sections of the First and Fourth Amendments. Instructively, the 1970 case of Zurcher v. Stanford Daily gave the Supreme Court occasion to consider a suit against the government for executing a warrant to seize film and negatives from a university newspaper to identify protestors involved in assaults on police officers.70 Students and newspaper staff argued that a subpoena duces tecum was less intrusive of First Amendment privacy rights and ought to have precluded execution of the warrant.71 But the Supreme Court rejected the argument, stating:
The Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion or justification for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here and by insisting that the investigation proceed by subpoena duces tecum, whether on the theory that the latter is a less intrusive alternative or otherwise.72
The Supreme Court also rejected the notion that there are “additional factors derived from the First Amendment” that should be considered to justify the use of a warrant.73 Rather, “[w]here the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’”74 A warrant’s exactitude, including the requirement of particularity, should “leave as little as possible to the discretion or whim of the officer in the field.”75
Consistent with this standard, CAAF rejected First Amendment challenges for two warrants concerning the seizure of obscene material. In United States v. Allen, the court considered challenges to a warrant executed at the accused’s off-base residence and said that “[t]here is no requirement for a higher standard of probable cause for material protected by the First Amendment; a showing that there is a fair probability that the material sought is obscene is sufficient.”76 Similarly, in United States v. Monroe, the court upheld a warrant to search for obscene material in the suspect’s dormitory room on Osan Air Base, Korea, stating that “an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.”77
Notwithstanding this precedent, digital service providers for virtual assistants continue to urge an expansion of First Amendment protections, as illustrated in Arkansas v. Bates. In that case, Amazon moved to quash the warrant’s demands for “electronic data in the form of audio recordings, transcribed records, text records, and other data contained on an Amazon Echo device.”78 In its motion, Amazon asserted independent privacy rights on its own behalf as well as that of the suspect/customer, stating that the government was seeking information “that may include expressive content protected by the First Amendment.”79 Amazon argued that the warrant was invalid because the government was obligated (but failed) to “make a heightened showing of relevance and need for any recordings,” by meeting a compelling interest test.80 Specifically, the compelling interest test would require the government to demonstrate “1) a compelling need for the information sought, including that it is not available from other sources; and 2) a sufficient nexus between the information and the subject of the criminal investigation.”81 Amazon further asked that, in the event the court ruled that the government had presented a prima facie showing for the compelling interest test, the court conduct an in camera review of the information to determine if the “heightened standard for disclosure has been satisfied.”82 In support of this argument, Amazon cited the following cases.
First, in Amazon.com LLC v. Lay, the North Carolina Department of Revenue (DOR) issued a subpoena for information linking Amazon sales to specific customers in North Carolina for purposes of tax investigation.83 The court applied the compelling interest test (outlined by Amazon’s motion above) and ruled that the subpoena violated customers’ First Amendment rights and the Video Privacy Protection Act.84 Second, in In re Grand Jury Subpoena to Amazon.com dated August 7, 2006, the court applied the compelling interest test for a grand jury subpoena and modified an order seeking identification of potential book buyers as witnesses to prove tax evasion and fraud by a used bookseller.85 Third, the court applied the compelling interest test and quashed a grand jury subpoena seeking customer names of potentially obscene video purchases in In re Grand Jury Investigation of Possible Violation of 18 U.S.C. § 1461.86
Fourth, in In re Grand Jury Subpoena to Kramerbooks & Afterwords Inc., Special Prosecutor Kenneth Starr subpoenaed a list of Monica Lewinsky’s book purchases, and both she and the booksellers moved to quash.87 The court found that, because the subpoena chilled both Ms. Lewinsky’s and the bookseller’s First Amendment rights, the Independent Counsel must show, ex parte, “a compelling need for the information,” and “a sufficient connection between the information sought and the grand jury investigation.”88
Fifth, Amazon relied on Tattered Cover, Inc. v. City of Thornton, where the Supreme Court of Colorado invalidated, on state constitutional grounds, a local warrant seeking purchase information for a suspect’s “how to” books on drug manufacturing.89 The Tattered Cover court acknowledged that the warrant would likely be valid under Zurcher but chose to apply the compelling interest test from Kramerbooks under the authority of state law.90 Sixth, and finally, Amazon cited (and attached) a warrant from a state homicide investigation in Florida wherein the court followed state law and applied a compelling interest test:
[F]inding that the requested information includes expressive content and private information protected by the First Amendment, the Florida Constitution, and the Video Privacy Protection Act of 1988, and that a heightened showing of relevance and need must be made before issuing the Search Warrant, and having found that a compelling need does exist only for the requested information identified by this Court in the Affidavit, a substantial nexus is demonstrated between the information identified by this Court in the Affidavit and the subject of the criminal investigation; and the State of Florida has exhausted all other avenues to obtain the information in ways that do not burden First Amendment rights, a Search Warrant is hereby allowed.91
Although Arkansas v. Bates ended with the suspect’s capitulation and Amazon’s subsequent withdrawal of its motion to quash,92 the tech giant continues to litigate its privacy interests in active cases.93 Thus, if the prosecution desires to avoid needless litigation—as in the case where a search warrant seeks data collected in the United States at an off-base residence—such warrant requests should comply with the compelling interest test outlined previously. The following planning guidance offers methodology for incorporating appropriate legal standards into working products.
To assist in the data acquisition process, the practitioner should refer to Army Regulation (AR) 27-10, Military Justice,94 Article 46 of the Uniform Code of Military Justice (UCMJ), and RCMs 309, 703, and 703A. The following discussion on 1) affidavits, 2) warrant requests, 3) post-warrant matters, and 4) trial usage, provides an overview of the process indicated by those sources.
The first challenge is to determine what data is available. This is a difficult question to answer for many reasons, including the proprietary interests of digital service providers, and the internal compartmentation of their own system knowledge.95 Government96 and public organizations97 help to fill this knowledge gap with sharing, consultation, and training. An obvious example of evidence available from virtual assistants is audio recordings (even accidental) from a relevant time period;98 but investigators are realizing other opportunities—as in a recent investigation of a double-homicide investigation, in which police wanted to confirm a suspect’s presence by collecting data on which cellular devices were paired with a virtual assistant at the time of death.99 Research, networking, and expert consultation (including consultation with the digital service provider itself), will help determine what data exists.
Once the trial counsel is aware of the available data and the need for a warrant, they should consult with investigators, judge advocates, and disposition authorities concerned in the investigation.100 Based on that consultation, the trial counsel will assist the investigators in preparing a probable cause affidavit,101 which will be an attachment to DD Form 3057, Application for Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703.102 In line with Zurcher and Tattered Cover, the affidavit should emphasize the compelling need for sensitive information, the narrow scope of the request, and the lack of alternate sources.103
The Warrant Request
In tandem with the affidavit, the trial counsel must draft the warrant request in DD Form 3057 and describe with scrupulously exact particularity the type of data to be seized.104 The method of particularity depends on the type of data, and the request should limit data to exclude categories of irrelevant information where possible, such as the titles of expressive material like podcasts, videos, music, or audio books.105 In the event that the warrant is seeking particularly sensitive data, such as medical information or the content of expressive material, the trial counsel may request that the returns be submitted directly to the military judge for in camera inspection and relevance determination.106 Usually, the trial counsel should include a no-notice or delayed notice provision in the warrant request, citing SCA authority.107 When requesting no-notice or delayed notice, the request should include a justification of reasonably foreseeable “adverse” results if notice is given.108
If the case is in the pre-referral stage, the trial counsel should follow RCM 309 procedures in drafting and sending the warrant request, affidavit, and supporting evidence—via an ex parte email—to the military judge109 with docket jurisdiction over the investigation.110 Throughout the application process, it is the trial counsel’s responsibility to correspond with the military judge for any requirements, such as requests for additional information or evidentiary reviews.111 To the maximum extent possible, correspondence should occur via email to preserve the record.
If the military judge issues the warrant, the trial counsel will task a law enforcement officer to serve the warrant on the appropriate recipient;112 and, when the recipient delivers the information, the trial counsel will then document the return on the warrant and email an inventory of received items to the military judge.113 In the event that the return is delivered to the military judge for in camera inspection, the trial counsel should document the receipt of sealed material and update the record once information is released. To protect item content from unnecessary exposure and litigation, the inventory should not include any indication of specific content.114 All the records from the RCM 309 process (which should ideally consist only of email correspondence and attachments) must be maintained by the trial counsel115 and submitted to the trial judge for inclusion in the record of trial if there is a resulting referral.116 The trial counsel must also deliver a copy of the RCM 309 proceedings to the military commander who has jurisdiction over the investigation and subjects.117 Importantly, upon expiration of any delayed notice provision, the trial counsel must ensure that the virtual assistant customer receives notice of the search consistent with RCM 703A(d)(3).
The trial admission of data from virtual assistants has not been directly tested in military appellate courts. In one instructive case, United States v. Lubich, CAAF had occasion to consider the admission of user data extracted from electronic information stored on a government account.118 In Lubich, the defense objected to a lack of confrontation and lack of authenticity under Military Rule of Evidence (MRE) 901, because the testifying agent could not give detailed information on the “collection processes” that allowed technicians to capture and copy visited websites (and username and password data) to a compact disc.119 The Court of Appeals for the Armed Forces rejected the defense arguments and found that the information was properly authenticated under MRE 901, and the defense arguments went to the weight of the evidence rather than its admissibility.120 Importantly, the court noted that “[i]f a computer processes data rather than merely storing it, authentication issues may arise.”121
In contrast, the United States District Court for the Ninth Circuit has evaluated foundation and authenticity questions in a bankruptcy suit involving electronic business records, and approved the trial judge’s refusal to admit electronically generated billing statements.122 The Ninth Circuit adopted an eleven-part test for authenticating electronic records.123 Elaborating on the fourth step (“built-in safeguards to ensure accuracy and identify errors”), the court said that it should include “details regarding computer policy and system control procedures, including control of access to the database, control of access to the program, recording and logging of changes, backup practices, and audit procedures to assure the continuing integrity of the records.”124 Two years later, in Lorraine v. Markel American Insurance Co., the United States District Court of Maryland considered a civil suit involving the question of admissibility of electronically stored information (ESI) and suggested that other courts “might not be so demanding” as the Ninth Circuit.125 Instead, the Lorraine court suggested the following framework:
Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, [or] if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.126
Ultimately, Lorraine found that both parties had failed to establish the authenticity of their respective evidence,127 but the lengthy analysis and supporting citations are a helpful case study for the proponent of data taken from the cloud. Importantly, with the proper method of authentication, a motion in limine could save the prosecution the trouble of calling a foundational witness.128 Using this guidance, the military practitioner is empowered to successfully introduce the hard-fought evidence at trial and protect the interests of justice.
Generally, the collection and use of criminal evidence is a familiar pattern for experienced litigators. Yet, there is always a first time for everything—as is the case for criminal evidence generated by virtual assistants in military trials. It is likely that this type of data use in litigation will eventually become commonplace. Until that happens, the military practitioner can use the information outlined in this article to confidently pursue vital evidence captured by virtual assistants. In a rapidly developing case, the practitioner can act quickly to preserve data and confidently construct legal documents to compel its swift production, while avoiding unnecessary litigation risks. Once the evidence is collected, practitioners can build a strategy for trial use around existing case law that minimizes the likelihood of successful challenge—both at the trial and appellate stage. Much more remains to be settled at the intersection of criminal law and the IoT, but this article may temporarily ease the navigation of that crossroads. TAL
(Credit: Karneg – stock.adobe.com)
(Credit: tanaonte – stock.adobe.com)
1. Holly Kathleen Hall, Arkansas v. Bates: Reconsidering the Limits of a Reasonable Expectation of Privacy, 6 U. Balt. J. Media L. & Ethics 22, 25–26 (2017).
2. Internet of Things, Wikipedia, https://en.wikipedia.org/wiki/Internet_of_things (last visited May 20, 2021) (results of author’s voice query on iPhone 8, Siri function).
3. Ryan Haines, Best Alexa-Compatible Devices for Your Home: Our Top 12, Android Authority (Apr. 7, 2021), https://www.androidauthority.com/best-alexa-devices-953301/; Kate Kuzoch, The Best Google Home Compatible Devices in 2021, Tom’s Guide (May 3, 2021), https://www.tomsguide.com/best-picks/google-home-compatible-devices; Brad Stephenson, The 7 Best Smart Clothes of 2021, Lifewire, https://www.lifewire.com/best-smart-clothes-4176104 (Jan. 4, 2021); Paige Leskin, The Most Bizarre Things That Work with Amazon Alexa, from a Twerking Teddy Bear to a Smart Toilet, Bus. Insider (Oct. 1, 2019, 12:31 PM), https://www.businessinsider.com/amazon-echo-alexa-enabled-products-devices-most-interesting-weirdest-bizarre-2019-8.
4. Bernadette Johnson, How Amazon Echo Works, How Stuff Works, https://electronics.howstuffworks.com/gadgets/high-tech-gadgets/amazon-echo.htm (last visited May 26, 2021) (“Echo connects to the Internet via your home WiFi network. It’s always on and listening for the magic word to wake it up. Once it hears that, the device gathers the voice commands that follow and sends them to a natural voice recognition service in the cloud called Alexa Voice Service, which interprets them and sends back the appropriate response.”). See also Peggy Keene, Are You OK?: Amazon Files New Patent to Detect Emotions, 82 Tex. Bar J. 492 (2019) (discussing Amazon’s new patent for Alexa Echo’s emotion and accent detection skills).
5. Johnson, supra note 4 (noting the ability to mute the device). See also Allegra Bianchini, Always on, Always Listening: Navigating Fourth Amendment Rights in a Smart Home, 86 Geo. Wash. L. Rev. Arguendo 1, 6 (2018).
6. But see Hyunji Chung et al., Digital Forensic Approaches for Amazon Alexa Ecosystem, 22 Digit. Investigation S15–S25 (2017) (presentation on forensic study of Alexa Echo devices, noting certain models’ memory capacity and successful extraction of stored data).
7. Bianchini, supra note 5, at 6–7.
8. See Anna Karapetyan, Developing a Balanced Privacy Framework, 27 S. Cal. Rev. L. & Soc. Just. 197, 199 (2018) (“The rapid and continuous integration of voice assistants and their millions of embedded sensors into everyday appliances has resulted in the collection of an unprecedented amount of data. This digital universe doubles in size nearly every two years, and by 2020 is predicted to contain as many bits of data ‘as there are stars in the universe.’” (quoting Dell EMC, The Digital Universe of Opportunities: Rich Data and the Increasing Value of the Internet of Things 2 (Apr. 2014), https://www.iotjournaal.nl/wp-content/uploads/2017/01/idc-digital-universe-2014.pdf)).
9. Jordan P. Shuber, “Hey Alexa . . . Are You Discoverable Evidence?,” Strassburger McKenna Gutnick & Gefsky (Feb. 27, 2017), https://www.smgglaw.com/blog/hey-alexaare-you-discoverable-evidence.
10. Arkansas v. Bates, Case No. CR-2016-370-2 (Ark. Cir.).
11. This primer does not address intercepted communications regulated by federal wiretap statute (see 18 U.S.C. §§ 2510–2523), nor does it address specific collection and use of devices in the IoT beyond virtual assistants.
12. But see George Steer, Judge Says Amazon Must Hand Over Echo Recordings in Stabbing Case, Time (Nov. 12, 2018, 10:28 AM), https://time.com/5451863/amazon-echo-stabbing/ (quoting the court order: “‘The court directs Amazon.com to produce forthwith to the court any recordings made by an Echo smart speaker with Alexa voice command capability . . . as well as any information identifying cellular devices that were paired to that smart speaker during that time period,’ the statement read.”); J. Fingas, Florida Police Obtain Alexa Recordings in Murder Investigation: This Time, Though, Officers Are More Realistic About What They May Find, Engadget (Nov. 2, 2019), https://www.engadget.com/2019-11-02-florida-police-obtain-alexa-recordings-in-murder-case.html (“Investigators want to know if the smart speakers inadvertently picked up audio of a July altercation between Adam Crespo and his wife Silvia Crespo. She died of a spear wound to the chest; Adam maintained that it was the result of an accident.”).
13. Affidavit for Search Warrant (June 28, 2016) at 5–6, Arkansas v. Bates, Case No. CR-2016-370-2 (on file with author) (noting that the device was networked to other devices in the home; that it was capable of being remotely controlled through Bates’s cell phone, or through voice commands; and that “the Echo is equipped with sensors that use beam-forming technology to hear users from any direction . . . even while the device is playing music or if there is background noise.”).
14. Shuber, supra note 9.
15. Colin Dwyer, Arkansas Prosecutors Drop Murder Case That Hinged On Evidence From Amazon Echo, NPR, (Nov. 29, 2017, 5:42 PM), https://www.npr.org/sections/thetwo-way/2017/11/29/567305812/arkansas-prosecutors-drop-murder-case-that-hinged-on-evidence-from-amazon-echo; see also Affidavit for Search Warrant (June 28, 2016), supra note 13 (investigators speculated that the Alexa Echo “records any command, inquiry, or verbal gesture . . . possibly at all times without the ‘wake word’ being issued;” but the speculation appears to be unproven). Cf. Chung et al., supra note 6 (noting possible data retention from the device’s on-board memory); Steer, supra note 12 (citing a judicial order for “any recordings”); Fingas, supra note 12 (noting prosecutor’s “realistic” hope that the device might have been “accidentally activated”).
16. See Steer, supra note 12; Fingas, supra note 12.
17. Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant at 5, Arkansas v. Bates, No. CR-2016-370-2 (“Customers have the ability to listen to their voice recordings, view transcripts of those recordings, and delete any or all past recordings.”).
18. Manual for Courts-Martial, United States, Rule for Courts-Martial 703A(f) (2019) [hereinafter MCM].
19. 18 U.S.C. § 2703(f) (“(1) In general—A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. (2) . . . Records referred to in paragraph (1) shall be retained for a period of ninety days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.”).
20. Telephone interview with James Emerson, Vice President, Nat’l White Collar Crime Ctr. (Mar. 18, 2020) (discussing digital service providers’ general complaints about incorrect terminology in evidentiary requests, but hesitance to assist in perfecting such requests).
21. Telephone interview with Captain John Shirts, Cir. Trial Couns.–W. Cir., U.S. A.F. Reserve (Mar. 19, 2020) (noting the importance of broadly preserving evidence in the early stages of a case).
22. See Google Support: Transparency Report Help Center, https://support.google.com/transparencyreport/answer/9713961?hl=en&visit_id=637209102720134468-2568071530&rd=1 (last visited May 26, 2021) (discussing public reports in relation to preservation requests and noting that “[w]e report the number of preservation requests received, but we do not include preservation requests in the total number of user data disclosures because we don’t disclose any user information in response to a preservation request. If a government agency does come back with a legal order to disclose preserved information, we account for those disclosures in the appropriate legal process category.”); see also Amazon Law Enforcement Guidelines, Amazon, https://d1.awsstatic.com/certifications/Amazon_LawEnforcement_Guidelines.pdf (last visited May 26, 2021) (“Unless it is prohibited from doing so or has clear indication of illegal conduct in connection with the use of Amazon products or services, Amazon notifies customers before disclosing content information.”); cf. Google, Inc. (DBA Gmail.com) Subpoena Compliance Contact, Epic.org, https://epic.org/privacy/ecpa/EPIC-16-06-15-SEC-FOIA-20170720-Appeal-production1.pdf (last visited May 26, 2021) (“At Google’s request, please include the following language in any subpeona [sic]: ‘Please do not disclose/notify the user of the issuance of this subpoena. Disclosure to the user could impede an investigation or obstruct justice.’”).
23. United States v. Warshak, 631 F.3d 266, 283 (6th Cir. 2010) (“Per the government’s instructions, Warshak was not informed that his messages were being archived.”).
24. Id. at 283, 283 n.14 (“In October 2004, the government formally requested that NuVox prospectively preserve the contents of any emails to or from Warshak’s email account. The request was made pursuant to 18 U.S.C. § 2703(f) and it instructed NuVox to preserve all future messages. . . . Warshak appears to have accessed emails from his NuVox account via POP, or ‘Post Office Protocol.’ When POP is utilized, emails are downloaded to the user’s personal computer and generally deleted from the ISP’s server. . . . NuVox acceded to the government’s request and began preserving copies of Warshak’s incoming and outgoing emails—copies that would not have existed absent the prospective preservation request.”).
25. Id. at 283. Cf. Google Support, supra note 22 (discussing preservation requests and noting that “[p]reservation requests only apply to information that Google has at the time of the request, not information that may be generated in the future.”).
26. 18 U.S.C. § 2707(e); cf. MCM, supra note 18, R.C.M. 703A(e) (“As provided under 18 U.S.C. § 2703(e), no cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a warrant or order under this rule.”).
27. Amazon Law Enforcement Guidelines, supra note 22 (“Amazon does not accept service of subpoenas, search warrants, or other legal process except through Amazon Law Enforcement Request Tracker (“ALERT”). . . . Legal process must be served by uploading the appropriate documentation through ALERT.”).
28. The central email is USLawEnforcement@google.com, and the fax number is 650-249-3429. See Google, Inc. (DBA Gmail.com) Subpoena Compliance Contact, supra note 22 and accompanying text.
29. MCM, supra note 18, R.C.M. 703A(f)(2) (authorizing a 90-day extension, parallel to 18 U.S.C. § 2703(f)).
30. See UCMJ art. 46 (2016).
31. See generally MCM, supra note 18, R.C.M. 703A.
32. Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510–2523; Stored Communications Act, 18 U.S.C. §§ 2701–2713.
33. 18 U.S.C. § 2703; see Military Justice Review Group, Report of the Military Justice Review Group Part I: UCMJ Recommendations 413 (22 Dec. 2015) (discussing the recommendation to adopt UCMJ amendments conforming to the SCA, and stating “[a]lthough this is an area of federal law that is currently in flux, with various appellate court decisions making proper application of the [SCA] uncertain, these amendments would ensure that military criminal investigations and courts-martial have the same access provided to state and federal investigators and courts with respect to this type of highly relevant information”); see also Christina Raquel, Blue Skies Ahead: Clearing the Air for Information Privacy in the Cloud, 55 Santa Clara L. Rev. 467, 482 (2015).
34. See generally UCMJ art. 46 (2016); MCM, supra note 18, R.C.M. 703A, 703(g)(3)(C); see also Raquel, supra note 33, at 483.
35. 18 U.S.C. § 2510(8)
36. 18 U.S.C. § 2510(15).
37. 18 U.S.C. § 2711(2).
38. Jonathan Strickland, How Cloud Computing Works, HowStuffWorks, https://computer.howstuffworks.com/cloud-computing/cloud-computing1.htm (last visited May 26, 2021) (discussing multi-faceted cloud computing characteristics, and noting the variety of applications, programs, and storage methods available).
39. Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1215 (2004) (“The distinction between providers of ECS and RCS is made somewhat confusing by the fact that most network service providers are multifunctional. They can act as providers of ECS in some contexts, providers of RCS in other contexts, and as neither in some contexts as well. In light of this, it is essential to recognize the functional nature of the definitions of ECS and RCS. The classifications of ECS and RCS are context sensitive: the key is the provider’s role with respect to a particular copy of a particular communication, rather than the provider’s status in the abstract.”); Raquel, supra note 33, at 489 (discussing that “many cloud computing services either fluctuate between an ECS and RCS status or completely fall outside the SCA’s purview” (citing William J. Robison, Free at What Cost?: Cloud Computing Privacy Under the Stored Communications Act, 98 GEO. L.J. 1195, 1209 (2010))).
40. Kerr, supra note 39, at 1215; Raquel, supra note 33, at 489.
41. Fed. Trade Comm’n, Internet of Things: Privacy and Security in a Connected World (2015) (“[B]y intercepting and analyzing unencrypted data transmitted from a smart meter device, researchers in Germany were able to determine what television show an individual was watching.” (citing Dario Carluccio & Stephan Brinkhaus, Presentation, Smart Hacking for Privacy, 28th Chaos Comm. Congress, Berlin, (Dec. 2011))).
42. Kerr, supra note 39, at 1218.
43. 18 U.S.C. § 2703(d); cf. MCM, supra note 18, R.C.M. 703A(c)(1)(A).
44. See United States v. Wuterich, 67 M.J. 63, 77 (C.A.A.F. 2008) (citations omitted) (discussing the relevant and necessary standard for subpoenas in the context of a motion to quash); see also Raquel, supra note 33, at 483.
45. United States v. Miller, 425 U.S. 435, 443 (1976) (finding no expectation of privacy in financial records held by the bank, even when the records are surrendered with an expectation for limited use); Smith v. Maryland, 442 U.S. 735, 740 (1979) (finding no expectation of privacy in records of telephone numbers help by the phone company).
46. Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018).
47. See 18 U.S.C. § 2703(d) (providing for the collection of digital information from an RCS via court order if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents . . . are relevant and material to an ongoing criminal investigation”); cf. MCM, supra note 18, R.C.M. 703A(c) (containing nearly identical authority allowing the government to collect digital information from an RCS if the order “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”).
48. Carpenter, 138 S. Ct. at 2212–13, 2223 (explaining that “if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. Our decision today does not call into doubt warrantless access to CSLI in such circumstances.”).
49. Id. at 2217, 2222.
50. Id. at 2223 (emphasis added).
51. Riley v. California, 573 U.S. 373, 386 (2014).
52. Id. at 394 (emphasis added).
53. Id. at 394–97, 401 (citations omitted) (“Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.”).
54. Sarah Murphy, Watt Now: Smart Meter Data Post-Carpenter, 60 B.C. L. Rev. 785, 811 (2020) (citations omitted) (“Every appliance in a person’s home has an electric load signature that is unique to that appliance. By comparing smart meter data and electric load signatures, it is possible to identify what appliances a person is using at a given time. If this data is aggregated over time, it could reveal a person’s daily home life. For example, smart meter data could show that a person is not home every Saturday morning from 0900 to 1100. It could show that a person typically goes to sleep at 1000. It could show that a person cooks dinner three times per week. If a person has visitors for the weekend, smart meter data can show that, too.”).
55. Robert D. Lang & Lenore E. Benessere, Alexa, Siri, Bixby, Google’s Assistant, and Cortana Testifying in Court, N.Y. State Bar Ass’n J., Nov./Dec. 2017, at 9–10.
56. See Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects, 104 Cal. L. Rev. 805, 863 (2016) (“In the context of the Internet of Things, the right to be secure offers a compelling justification about why the data and signals should be protected against governmental intrusion. The data at issue is largely private, encompassing sensitive home, personal, travel, and health information among other things. The data trails reveal private patterns and information. Even individualized data points—a single device monitored over time—invades a sense of personal autonomy.”). See also Karapetyan, supra note 8, at 199.
57. United States v. Langhorne, 77 M.J. 547, 555 (C.A.A.F. 2017).
58. Id. (citations omitted).
59. United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996).
60. United States v. Larson, 66 M.J. 212, 219–20 (C.A.A.F. 2008) (finding that the accused “fails to rebut and overcome the presumption that he had no reasonable expectation of privacy in the government computer provided to him for official use”); cf. United States v. Long, 64 M.J. 57, 63-65 (C.A.A.F. 2006) (emphasizing the fact-specific holding and stating “[t]he totality of the circumstances in this case leads us to conclude that . . . Appellee’s expectation of privacy was objectively reasonable. . . . If [the system administrator] had been doing the monitoring described in the log-on banner when he came across Appellee’s incriminating e-mails, this case would . . . [present] a different analytic framework and potentially a different result.”).
61. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000) (“In this case, the system was owned by the Government and instead of a contractual agreement not to read or disclose messages, there was a specific notice that ‘users logging on to this system consent to monitoring by the Hostadm [sic].’”).
62. United States v. Warshak, 631 F.3d 266, 288 (2010).
63. Id. (citations omitted) (“The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails.”).
64. See Murphy, supra note 54, at 788–89 (noting that courts used to find that collection of utility data was not a search under third party doctrine, but “Carpenter effectively limited the blanket application of the third-party doctrine and required a case-by-case evaluation”); U.S. Dep’t of Army, Reg. 27-10, Military Justice paras. 5-15–5-19 (20 Nov. 2020) [hereinafter AR 27-10] (directing trial counsel to obtain a warrant to compel the “content” of electronic communications); Law Enforcement Information Requests, Amazon, https://www.amazon.com/gp/help/customer/display.html?nodeId=GYSDRGWQ2C2CRYEF (last visited May 26, 2021) (“We have repeatedly challenged government demands for customer information that we believed were overbroad. . . . We also advocate . . . to require law enforcement to obtain a search warrant from a court to get the content of customer communications.”).
65. See 18 U.S.C. § 2703.
66. See Carpenter v. United States, 138 S. Ct. 2206, 2222 (2018) (distinguishing CSLI from other types of business records, stating “[t]his is certainly not to say that all orders compelling the production of documents will require a showing of probable cause. The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”). See also United States v. Ohnesorge, 60 M.J. 946, 949 (N-M. Ct. Crim. App. 2005) (finding no reasonable expectation of privacy in subscriber data surrendered to the government from a commercial web site); United States v. Felton, 367 F.Supp. 3d 569, 575 (W.D. La. 2019) (distinguishing Carpenter, and upholding FBI subpoena of subscriber data linked to IP address that was using a U.S. Postal Service website to track drug shipments).
67. Meagan Flynn, Police Think Alexa May Have Witnessed a New Hampshire Double Homicide. Now They Want Amazon to Turn Her Over, Wash. Post (Nov. 14, 2018, 7:28 AM), https://www.washingtonpost.com/nation/2018/11/14/police-think-alexa-may-have-witnessed-new-hampshire-double-slaying-now-they-want-amazon-turn-her-over/ (reporting that, despite a judicial order, “an Amazon spokesman indicated that Amazon wouldn’t be turning over the data so easily, appearing to prioritize consumer privacy as it has done in the past”).
68. Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant, supra note 17, at 9–10 (stating the First Amendment argument as follows: “The recordings stored by Amazon . . . will usually be both (1) the user’s speech . . . and (2) a transcript or depiction of the Alexa Voice Service response . . . the First Amendment protects not only an individual’s right to speak, but also his or her ‘right to receive information and ideas.’ (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969), citing Griswold v. Connecticut, 381 U.S. 479, 482 (1965)) At the heart of the First Amendment protection is the right to browse and purchase expressive materials anonymously, without fear of government discovery. (citing McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965))”).
69. See New York v. P.J. Video Inc., 475 U.S. 868, 875 (1986) (in the context of a warrant to seize allegedly obscene material, the Court rejected “any suggestion that the standard of probable cause in the First Amendment area is different than in other contexts,” and holding “that an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” (citations omitted)).
70. Zurcher v. Standard Daily, 436 U.S. 547, 563 (1970).
72. Id. at 559.
73. Id. at 563.
74. Id. at 564–65 (citing Stanford v. Texas, 379 U.S. 476, 485 (1965)) (“Properly administered, the preconditions for a warrant—probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness—should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.”).
75. Id. at 564 (“‘A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.’” (quoting Roaden v. Kentucky, 413 U.S. 496, 501 (1973))).
76. United States v. Allen, 53 M.J. 402, 407 (C.A.A.F. 2000) (citing New York v. P.J. Video Inc., 475 U.S. 868, 868 (1986)).
77. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000) (quoting P.J. Video Inc., 475 U.S. at 875).
78. Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant, supra note 17, at 6–7, Ex. A-1 at 38-39 (noting Amazon compliance with the preservation order and partial compliance with the warrant demands by turning over Bates’s subscriber data and purchase history).
79. Id. at 2.
82. Id. at 3.
83. Amazon.com LLC v. Lay, 758 F. Supp. 2d 1154, 1167–69 (W.D. Wash. 2010).
84. Id. at 1168–69.
85. In re Grand Jury Subpoena to Amazon.com dated August 7, 2006, 246 F.R.D. 570, 572–74 (W.D. Wis. 2007) (“Amazon, however, has a legitimate concern that honoring the instant subpoena would chill online purchases by Amazon customers. This First Amendment concern is a factor for the court to consider . . . . So, although no Supreme Court precedent yet has required the government to pass a test of substantial relation or compelling need, I have required the government to explain the grand jury’s investigative need for the identities of people who purchased used books . . . . [A]t this juncture (and perhaps at every juncture), the government is not entitled to unfettered access to the identities of even a small sample of this group of book buyers.”).
86. In re Grand Jury Investigation of Possible Violation of 18 U.S.C. § 1461, 706 F.Supp. 2d 11, 18–19 (D.D.C. 2009) (“Therefore, the United States may only obtain the records if it demonstrates a compelling need for them and a sufficient nexus between the records and the grand jury’s investigation, or if it shows that they are not entitled to the protection of the First Amendment, which it has not attempted to do.”).
87. Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant, supra note 17, at Ex. 1 (In re Grand Jury Subpoena to Kramerbooks & Afterwards Inc., 26 Med. L. Rptr. 1599 (D.D.C. 1998)).
88. In re Grand Jury Subpoena to Kramerbooks & Afterwards Inc., 26 Med. L. Rptr. 1599, 1601 (D.D.C. 1998).
89. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1056 (Colo. 2002) (en banc) (“[W]e find the protections afforded to fundamental expressive rights by federal law, under the above interpretation of Zurcher, to be inadequate. We turn to our Colorado Constitution, which we now hold requires a more substantial justification from the government than is required by the Fourth Amendment of the United States Constitution when law enforcement officials attempt to use a search warrant to obtain an innocent, third-party bookstore’s customer purchase records.”).
90. Id. at 1059 (“[W]e hold that our state constitution requires that the government, when it seeks to use a search warrant to discover customer book purchase records from an innocent, third-party bookstore, must demonstrate that it has a compelling need for the information sought. In determining whether law enforcement officials have met this standard, the court may consider various factors including whether there are reasonable alternative means of satisfying the asserted need and whether the search warrant is overly broad. The court must then balance the law enforcement officials’ need for the bookstore record against the harm caused to constitutional interests by execution of the search warrant. This harm likely will be minimal if the law enforcement officials’ reasons for wanting the book purchase record are entirely unrelated to the contents of the books.”).
91. Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant, supra note 17, at Ex. 2 (Search Warrant: State of Florida, County of Pinellas, dated March 7, 2013).
92. Dwyer, supra note 15.
93. Steer, supra note 12; see also Law Enforcement Information Requests, supra note 64 (“Amazon does not disclose customer information in response to government demands unless we’re required to do so to comply with a legally valid and binding order.”).
94. AR 27-10, supra note 64, paras. 5-15–5-19.
95. Emerson, supra note 20 (noting that descriptions of available data and capabilities within the cloud or on a device often vary significantly depending on which programmers or system designers are consulted, and they typically lack overarching knowledge of system capabilities or even specific capabilities that are not interrelated to their specialties).
96. See Office of Justice Programs—Bureau of Justice Assistance (BJA), U.S. Dep’t of Just., https://www.ojp.gov/about/offices/bureau-justice-assistance-bja (last visited May 26, 2021) (the “Bureau of Justice Assistance . . . provides leadership and assistance to local criminal justice programs that improve and reinforce the nation’s criminal justice system”); Office of Justice Programs—National Institute of Justice (NIJ), U.S. Dep’t of Just., https://www.ojp.gov/about/offices/national-institute-justice-nij (last visited May 26, 2021) (the “National Institute of Justice . . . provides objective, independent, evidence-based knowledge and tools to meet the challenge of criminal justice, particularly at local and state levels . . . [and] funds research, development, and technology assistance.”); Collaborative Reform Initiative for Technical Assistance Center, U.S. Dep’t of Just. Cmty. Oriented Policing Servs., https://cops.usdoj.gov/collaborativereform (last visited May 26, 2021) (“Technical assistance encompasses a host of methods including training, peer-to-peer consultation, analysis, coaching, and strategic planning.”).
97. See National White Collar Crime Center, NW3C, https://www.nw3c.org/investigative-resources (last visited May 26, 2021) (“The National White Collar Crime Center provides technical assistance to law enforcement and regulatory agencies in the areas of Cybercrime, Financial Crime, Intelligence Analysis, and Intellectual Property Theft.”); Multi-State Information Sharing & Analysis Center, Ctr. for Internet Sec., https://www.cisecurity.org/ms-isac/ (last visited May 26, 2021); Techno Sec. & Digit. Forensics Conf., https://www.technosecurity.us/ (last visited May 26, 2021) (“[O]ne of the most important resources for corporate network security professionals, federal, state and local law enforcement digital forensic specialists, and cybersecurity industry leaders from around the world. The purpose is to raise international awareness of developments, teaching, training, responsibilities, and ethics in the field of IT security and digital forensics.”).
98. See Fingas, supra note 12 (“Unlike a pioneering murder case in Arkansas, Hallandale police weren’t expecting a complete audio capture. The search warrant indicated that cops obtained ‘Amazon Echo Recordings w/ Alexa Voice Command,’ suggesting that they were only hoping that one or both of the Crespos may have inadvertently set off the Echo Dots during the incident. Outside of security exploits, there’s no substantial evidence that Echo speakers record continuously—they’re only supposed to capture audio in a brief window of time after someone says Alexa’s wake word.”).
99. See Steer, supra note 12.
100. AR 27-10, supra note 64, para. 5-16(f).
101. Id. para. 5-17(d).
102. U.S. Dep’t of Def., Form 3057, Application for Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703 (Mar. 2019).
103. See Zurcher v. Standard Daily, 436 U.S. 547, 564–65 (1970); Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1059 (Colo. 2002) (en banc).
104. See Zurcher, 436 U.S. at 564–65.
105. There may be instances where the content of expressive material is relevant. For example, if there is a question about the presence of a child in the home, it may be relevant that Alexa is accepting voice commands to play lullabies or ABC videos on the bedroom television.
106. See MCM, supra note 18, R.C.M. 309(a)(1) (“A military judge detailed under regulations of the Secretary concerned may conduct proceedings under Article 30a before referral of charges and specifications to court-martial for trial, and may issue such rulings and orders as necessary to further the purpose of the proceedings.”).
107. Interestingly, the MCM references delayed notice in regard to court orders, but not specifically to warrants. But see 18 U.S.C. § 2703(b) (“A governmental entity may require a provider . . . to disclose the contents of any wire or electronic communication . . . without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in . . . ( . . . chapter 47 of title 10 (the Uniform Code of Military Justice), issued under section 846 of that title, in accordance with regulations prescribed by the President) by a court of competent jurisdiction . . . .”).
108. MCM, supra note 18, R.C.M. 703A(d)(4) (“An adverse result . . . is—(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.”).
109. See MCM, supra note 18, R.C.M. 309(f) (prohibiting military magistrates from exercising warrant authority under R.C.M. 309(b)(2)).
110. AR 27-10, supra note 64, para. 5-17(e) (“Submission may be made personally or electronically to the military judge with docketing responsibility over the unit to which the trial counsel is assigned.”).
111. Id. para. 5-17(d) (“The trial counsel will provide the military judge such information regarding the nature of the investigation as the military judge may require, including a written affidavit and/or presentation of additional evidence supporting the requested process.”).
112. Supra notes 27–29 (outlining the service of legal process for Amazon and Google); see also MCM, supra note 18, R.C.M. 703A(g) (“As used in this rule, the term ‘federal law enforcement officer’ includes an employee of the Army Criminal Investigation Command, the Naval Criminal Investigative Service, the Air Force Office of Special Investigations, or the Coast Guard Investigative Service, who has authority to request a search warrant.”).
113. AR 27-10, supra note 64, para. 5-17(g) (“After receipt of relevant information based on service of the warrant the trial counsel will provide the military judge an inventory of items received without describing specific content.”).
114. See Zurcher v. Standard Daily, 436 U.S. 547, 564–65 (1970); Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1059 (Colo. 2002) (en banc); Memorandum of Law in Support of Amazon’s Motion to Quash Search Warrant, supra note 17, at Ex. 1 (Kramerbooks & Afterwards Inc., 26 Med. L. Rptr. 1599, 1601 (D.D.C. 1998)).)
115. AR 27-10, supra note 64, para. 5-18(b)(2) (noting that, apart from court proceedings under Article 30a, “[t]he trial counsel will maintain a copy of the record of a pre-referral proceeding, if any, as part of the case file for eventual filing in the [record of trial].”).
116. MCM, supra note 18, R.C.M. 309(e) (“A separate record of any proceeding under this rule shall be prepared and forwarded to the convening authority or commander with authority to dispose of the charges or offenses in the case. If charges are referred to trial in the case, such record shall be included in the record of trial.”).
118. United States v. Lubich, 72 M.J. 170, 175 (C.A.A.F. 2013).
119. Id. at 172 (quoting the trial judge: “I believe that argument goes more to the weight of the evidence, and you certainly can explore that in cross-examination. The objection is overruled. I find that both Prosecution Exhibits 19 and 23 for identification have been sufficiently authenticated and that the Confrontation Clause is not implicated because we’re dealing with an automated process, no conclusions in these documents themselves and, again, it’s an automated process with very little discretion involved on the part of the person that was obtaining the data.” (citation omitted)).
120. Id. at 175; see also United States v. Jungklaus Dadona, 2018 WL 3241488, at *3 (A.F. Ct Crim. App. Jul. 2, 2018) (citing Lubich, 72 M.J. at 173, and noting that screenshots of Kik messages were properly authenticated on the testimony of the investigative agents who operated the Kik account and captured the screenshots).
121. Lubich, 72 M.J. at 174–75 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 900.06, at 900-68 (Joseph M. McLaughlin ed., 2d ed. 2003)); see also Weinstein § 900.06 (providing further helpful discussion on authentication and foundation requirements for computer data).
122. In re Vee Vinhnee, 336 B.R. 437, 451 (B.A.P. 9th Cir. 2005).
123. Id. at 446 (stating the steps as follows: “1. The business uses a computer. 2. The computer is reliable. 3. The business has developed a procedure for inserting data into the computer. 4. The procedure has built-in safeguards to ensure accuracy and identify errors. 5. The business keeps the computer in a good state of repair. 6. The witness had the computer readout certain data. 7. The witness used the proper procedures to obtain the readout. 8. The computer was in working order at the time the witness obtained the readout. 9. The witness recognizes the exhibit as the readout. 10. The witness explains how he or she recognizes the readout. 11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.” (citing Edward J. Imwinkelried, Evidentiary Foundations § 4.03 (5th ed. 2002)).
124. Id. at 446–47.
125. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, n.27 (D. Md. 2007).
126. Id. at 538
127. Id. at 585.
128. Id. at 546–47 (discussing methods of self-authentication, and a practice of adding “hash values” and using “metadata” to authenticate electronic records).