Archive for the 'Intellectual Property' CategoryPage 2 of 17

Trademark Lawsuit for Juicy Fruit e-Cigarette

Juicy Fruit may not be the gum with the longest lasting flavor but, say what you will, their yellow packaging is immediately recognizable. The same is true of the green packaging on Doublemint, it’s just as easy to pick out in the checkout line in the grocery store. This is the product of around 100 years of marketing on the part of Wrigley Gum. Thus, when Chi-Town Vapors (a company dedicated to creating flavored e-cigarette fluid) decided to make e-cigarette flavors titled “Juicy Fruit” and “Doublemint” Wrigley decided to slap them with a lawsuit that Chi-Town is going to have a heck of a time wriggling out of.

Just last week, Wrigley brought a lawsuit alleging federal claims of trademark infringement, trademark dilution, and unfair competition, as well as an Illinois state law claim of deceptive trade practices, and a common law claim of unfair competition. Wrigley’s claims are strong in this case, mostly because of how Chi-Town Vapors has conducted their marketing and the nature of Chi-Town Vapor’s business. Especially strong are the claims of trademark infringement and trademark dilution. Chi-Town’s missteps are a good lesson for burgeoning businesses, especially when your product can-like Chi-Town’s-be especially vulnerable to dilution claims. In order to help keep your business’ safe, let’s take a look at this case, how it’s likely to shake out, and how trademark infringement and trademark dilution work.

trademark lawsuitChewing Over the Facts of the Case

Wrigley is an old company. A very old company. They’ve been selling Doublemint and Juicy Fruit gum for over a century. They’ve had a number of trademarks on “Juicy Fruit” and its associated logos for ages. Some registered as long ago as 1915, others issued a mere 60 years ago in 1953. It has similar trademark and trade dress (protection on the appearance of the packaging or building design consistently used by a company) on their Doublemint gum.

With all these age old registrations, you have to know it was a bad idea for Chi-Town Vapors to outright name the flavored e-cigarette liquid they sell “Juicy Fruit” and “Doublemint.” Chi-Town didn’t stop there, and their legal problems may not stop with Wrigley. They named flavors “Skittles,” “Hawaiian Punch”, “Kahlua,” “Mountain Dew,” “Red Bull,” and “Nutella.” All of these are registered marks and, no, Chi-Town didn’t get permission to use any of them. In a prime example of digging your own legal grave, Chi-Town Vapors’ marketing materials even included pictures of the products the flavors are based on or have their own name on incredibly close approximations of  the packaging of products such as Doublemint gum.

They must have caught wise to the fact that this wasn’t the best idea because, in January 2017, they took down these pictures and changed the names to things like “Joosy Froot;” still using the recognizable packaging of the candy as part of their marketing materials. Unfortunately for them, this is still extremely unlikely to be enough to get them off the hook.

Bursting Chi-Town’s Bubble: Trademark Infringement and Dilution

Trademark infringement mostly deals with the likelihood that the use of your registered trademark by another may confuse consumers as to the source or sponsorship of goods or services. For instance, if you have a trademark on Widget brand milk, and the guy across the street starts selling Widget brand almond milk, that would be a pretty clear-cut case of trademark infringement. This is especially true due to how close the other store is and how similar their product is.

Chi-Town used the exact name and packaging of both Juicy Fruit and Doublemint on a product designed to taste as identical to each respective gum as possible. There is serious potential that a customer would look at those flavors and think they were sponsored by Wrigley-thus why Chi-Town is in so much trouble.

However, as rough as the case may be for trademark infringement. Chi-Town Vapors has it worse when it comes to dilution. Dilution doesn’t need to show any confusion from consumers or even competition between the owner of the famous mark and the accused party’s product. Instead the owner simply needs to show blurring (that there is a likelihood of dilution in the consumer’s mind between the mark and their product) or tarnishment (a likelihood that association with the accused person’s use of the mark would damage the reputation of the owner’s mark). In order to receive this incredibly powerful protection, you need to be especially famous. However, with factors including how well known and how long the mark has been used as part of that analysis the 100-year-old and near universally recognizable Wrigley brands should qualify fairly easily.

It is the second half of dilution-tarnishment-which is the real trouble for an e-cigarette fluid distributor. Even in Wrigley’s complaint, it’s clear that they are leaning heavily on this argument to establish their dilution case. Not surprisingly, Wrigley has something to say about the practice of selling candy-flavored cigarettes. They point to studies out of the FDA, the Senate, and more which argue that flavoring e-cigarette materials like candy “harmfully targets children under 18 years of age.” To say that selling cigarettes to children has the potential to tarnish Wrigley’s brand is an understatement.

What Can You do to Avoid Chi-Town Vapor’s Sticky Situation?

As bad as the situation is for Chi-Town Vapors, and it does look bad, no case is a guaranteed slam-dunk. However, the best litigation strategy a company can take is to never face litigation at all. This isn’t always possible, but you can take steps in your branding to avoid Chi-Town Vapor’s situation.

First and foremost, don’t use famous brand names on your products without permission. This is obvious, but it bears repeating. If your business deals with something that might harm the reputation of a brand, liquor or tobacco for example, you have to be especially careful. This goes double when a famous brand targets children as customers. Another important step to take is to hire an attorney to do a trademark search for any logos or marketing slogans you want to use. This is generally fairly cheap and goes a long way towards avoiding a trademark infringement lawsuit. Your business is too important to risk a lawsuit or the expense of having to entirely change your branding after working to build it up-take the steps to make sure you don’t end up in Chi-Town Vapor’s situation.

Supreme Court Limits Patent Rights

One of the hallmarks of a successful business is protections on an invention which provide a barrier to competition beyond just money–a patent. Whether you’re an inventor or an entrepreneur, intellectual property protection is close to the heart of your livelihood. Keeping track of what these protections offer is crucial, and these last couple weeks has been enormous for patent law rulings out of the US Supreme Court. First, they limited jurisdictions for patent infringement cases substantially-making patent law much more defendant friendly. Even more recently, and more importantly for patent rights, they limited patent’s exclusive rights by applying the first sale doctrine to patent law at home and abroad with more force than ever before.

What is the First Sale Doctrine?

The first sale doctrine is a concept, also known as exhaustion, that is found as part of the statutory law behind copyright law. The rule is fairly simple but requires a bit of an understanding of the rights intellectual property grants you. Owning a copyright in a work gives you the exclusive right to sell (or really distribute in any way), display, make copies of, or make directive works from that work. Out of all of these, the first sale doctrine exclusively impacts the distribution rights. Once you’ve sold something, or even intentionally given it away, you have “exhausted your distribution rights in that particular work. This means that whoever owns the object or work now is free to sell it, put it on display, blow it up with dynamite-basically distribute or dispose of it as they wish. They can’t make copies, you keep that right, but the distribution right is gone after first sale-thus the first sale doctrine. In Impression Products v. Lexmark, the Supreme Court took this concept from copyright law and decided how it should apply in patent.

Laser Printer Losers-The Case Itself

Lexmark makes laser printers and, more importantly for this case, toner cartridges for those printers. These cartridges, once used up, can be much more cheaply refilled than replaced. This left Lexmark with a bit of a problem-an entire market dedicated to underselling their products by refilling and reselling cartridges. These businesses buy up used cartridges from US purchasers and purchasers abroad to resell them after a refill. With these competitors in mind Lexmark offered their product in two ways, at full price with no stipulations or at a lower price along with a promise to return the cartridges to Lexmark. In order to enforce this, Lexmark included microchips in their cartridges to prevent reuse-a measure the refillers promptly learned how to circumvent.

After failing to curb the businesses of these competitors, Lexmark decided to sue all the companies refilling and selling their used cartridges. They had a big problem though, the contract to not resell the cartridges wasn’t with the refillers it was with the clients who sold to the refillers. Thus, with no contract to assert, Lexmark said that these refillers were infringing on their patent rights.

A patent gives its owners the right to exclude others from making, using, selling, or importing the invention. Lexmark said that because they prohibited reuse and resale in their contracts, the refillers were violating their distribution rights. By the time the case reached the Supreme  Court, there were two serious questions to be addressed. First, whether the contract term could be enforced against the refillers through a patent infringement lawsuit. Second, whethand for patent rights abroad, the answers were no and yes respectively.

What the Decision Does

Case law has long established that exhaustion can apply in patent similar to how it does in copyright law. With this and some recent Supreme Court rulings in mind, the outlook was never particularly good for Lexmark.

As enforceable as their no sale agreements were under contract law, the Supreme Court wasn’t buying it under patent law. The argument, and Lexmark’s hope, was that by selling something with a restriction against further sale they had preserved their first sale rights. This isn’t the case according to the Supreme Court, you can’t contract around the first sale doctrine. Once you sell something

Exhaustion abroad is something the Supreme Court has already addressed for copyright law-and they didn’t go the way Lexmark would want in that case. So it’s no surprise that they followed their own previous ruling in applying exhaustion to patent. From now on selling something outside the US officially counts as a sale under the first sale doctrine and exhausts your distribution right.

These rulings mean that patent rights have been limited, more strictly applying the first sale doctrine to your patents than ever before. However, for those following intellectual property law, this ruling has been more a matter of when than if. The Supreme Court was simply consistent with how it’s handled copyright law in the past.

It’s worth noting that a license is not a sale and that exhaustion applies only to the item actually sold.  This will limit this ruling for many common items such as software or iTunes songs as you more often license these products than actually purchase them.

What’s more, the ruling skirts around the edges of a few other areas of law. Anti-circumvention makes it illegal to, as the name implies, circumvent effective security measures such as the microchips Lexmark installed in their cartridges. Repair and reconstruction is a distinction within patent law. You are allowed to repair an object with a patent on it, but full reconstruction can cross into the territory of patent infringement. While both of these might have applied in this case, neither were considered by the Supreme Court whatsoever.

This ruling will mean that you and your business need to be more careful about how you handle sales if you want to protect your distribution rights in something. There are ways to maintain your rights, depending on how you distribute your product. After this ruling, it’s more important than ever to consider how you’re going to handle your rights and your product.

Uber Part 2: Is Levandowski Guilty of Stealing Trade Secrets?

Yesterday, we talked about Waymo’s lawsuit against Uber over the alleged theft of the secrets behind Waymo’s self-driving car technology. What we didn’t get a chance to get into is the criminal consequences for the man who allegedly stole the files in the first place-Anthony Levandowsky.

After years of working with Google and Waymo, Levandowsky allegedly quit with no notice; making off with upwards of 14,000 confidential files relating to Waymo’s self-driving car technology. He immediately started his own self-driving software firm named Otto. Then, mere weeks after Otto came into existence, Uber (in the process of designing its own self-driving technology named Lidar) bought the whole shebang for $680M.

This led to the lawsuit against Uber, which we discussed in a previous article. However, it also might lead to even more serious problems for Levandowski.  When Uber’s attorneys attempted to question Levandowski in an effort to gather evidence for their civil case, he invoked his 5th Amendment right against self-incrimination. Pleading the 5th is asserting your right to not be forced to act as a witness against yourself in a criminal case but can be used to avoid testifying in either a criminal or a civil case so long as the answer to a question would tend to incriminate you. In a criminal trial, pleading the 5th can’t be used by a jury as evidence that somebody is guilty. This is not the case in a civil trial however, the jury is free to make any inferences they like when somebody pleads the right to avoid self-incrimination.

The judge in the case, Judge William Alsup, has certainly taken issue with Mr. Levandowsky’s actions. Taking into account both Levandowsky’s plea and apparently substantial evidence against him Judge Alsup has taken the rare step of reffering Mr. Levandowsky to the US Attorney’s Office for criminal charges.

The US Attorney’s Office may or may not proceed on Judge Alsup’s recommendation. Even if they do, it’s no guarantee that Levandowski will be found guilty-criminal proceedings require a higher standard of evidence. Criminal trade secret law is also similar, but not identical to its civil counterpart. In order to figure out exactly how much trouble Levandowsky is in, let’s take a look at exactly how criminal trade secret charges work as well as when and how the US Attorney’s Office decides to bring charges.

UberCriminal Trade Secret Law

Trade secret theft is a white collar crime under both state and federal laws. In federal law, the type of law Levandowsky would be facing if charged, it is governed by the Economic Espionage Act of 1996 (EEA)

Under the EEA, it is illegal steal, take without permission, carry away or obtain a trade secret by deception. It is also illegal to copy, download, upload, alter, destroy, transmit, give away, or sell a trade secret without permission. The EEA also makes it a crime to receive, buy, or own a trade secret that you know was wrongly obtained. A trade secret is defined as information that is made more valuable by being secret where its owner has taken reasonable steps to make sure the information stays secret.

For those of you who have read the article describing Waymo’s lawsuit against Uber earlier this week, these elements will sound quite familiar. However, there are a few differences between the criminal and civil sides of trade secret. First, the EEA makes it a crime to attempt or conspire to commit trade secret theft. At civil law this is not the case. As mentioned above, the standard of evidence is substantially different. Civil law requires a preponderance of the evidence-fifty percently likelihood plus a feather-criminal requires proof beyond a reasonable doubt. However, the single most substantial difference between civil and criminal trade secret is that criminal trade secret always requires evidence of intent and knowledge-the intent to “convert a trade secret” and knowledge that the person was committing one of the acts that are illegal under the EEA. Evidence of an intent to covert means that it must be shown that a person acted with the intention of exerting control over somebody else’s property which is not authorized by the property’s owner.

The evidence from the Waymo case makes it seem pretty cut and dried that Levandowski, at a minimum, took the 14,000 confidential documents without permission. His employment agreement made it fairly clear that they were not his to take. This means a criminal case against him would likely hinge on intent and knowledge. For somebody Levandowski, this would likely require proof that, at the specific time he committed a crime under the EEA, he did so with the intent to either use them himself or share the secrets contained within the documents he downloaded. The evidence certainly points this way. Especially damning is alleged evidence of plans to sell Otto to Uber from before Levandowski even left Waymo. Knowledge would require evidence that Levandowsky knew he was not supposed to take the documents he did. As mentioned already, we know this is the case because his employment agreement clearly forbade him to take and share those documents.

Will Criminal Charges Be Brought?

You can see that there’s a pretty strong potential case here against Levandowski. It’s worth noting that it is by no means ironclad. Levandowsky certainly had access to the files, partially because of his position. However, how easily accessed those files are might impact whether Waymo took sufficient measures to protect their trade secrets. The issue of intent may also be muddied somewhat by the exact level of access to the files Levandowsky was allowed in his position. If he actually believed he was allowed to take the files then he would not have the necessary intent for a criminal conviction.

All of this will be taken into account when the US Attorney’s Office decides whether to prosecute the case. Due to how overextended the budget of the Attorney’s Office is, criminal charges under the EEA are moderately rare. They often come up in situations where the secrets are owned by the government and/or are taken by international agents-a situation that the EEA slaps with higher penalties. For instance, the very first (and potentially most famous) EEA trade secret case involved a Chinese national who stole trade secrets related to the US Space Shuttle Program from Boeing.

Levandowsky is certainly not on this level. However, he would be far from the first homegrown conviction. Nor would he be the first criminal conviction that didn’t deal with earth-shatteringly important secrets-space shuttles, military software, and the like. In fact, the US Attorney’s Office has a published policy for how it decides whether it should prosecute a violation under the EEA. This policy looks at a number of factors including : 1) how wide the scope of the criminal activity is and especially whether a foreign government is involved; 2) how bad the economic injuries are to whoever owns the trade secret; 3) what type of trade secret was stolen (military secrets are obviously way up there on the priority list); 4) how effective a civil remedy would be; and 5) the potential deterrent value of bringing criminal charges-how much it will scare off similar criminals.  The existence of a civil remedy doesn’t weigh that much against prosecution as that remedy will almost always exist.

Levandowsky, if guilty, has immeasurably damage Waymo in their quest to be first to market in the burgeoning self-driving technology field. However, his single act of theft from a private company who is already suing in civil court might just be too small fry for the US Attorney’s Office to bother with.

What Does Levandowsky Potentially Face?

We’ll have to see if the US Attorney’s Office chooses to pursue a case against Mr. Levandowski. It’s unlikely Judge Alsup would have recommended charges if the case against Levandowski was not particularly strong. If they do chose to come after him, he’ll be facing up half a million in fines and a decade in prison.

Even with just the civil case leveled against him, Levandowski is in hot water. Criminal charges would take that water to boiling. However, even if the US Attorney’s Office does bring charges they are unlikely to do so particularly soon. For now, Levandowsky will just have to stew and hope.

Uber, in Trouble Again, For Allegedly Stealing Trade Secrets from Waymo

Uber has a bit of a history of asking for forgiveness instead of permission when it comes to the law–a trend which hasn’t worked out particularly well for them. This has come back to bite them again in the case brought against them by the Google owned self-driving car project Waymo.

After an engineer, Anthony Levandowsky, allegedly left Waymo with thousands of confidential files he set up a firm which Uber promptly purchased for $680M. It’s no surprise Uber was interested in what he was offering, they have long been developing their own self-driving technology. Among this technology is a laser navigation tool known as Lidar.

Just about a week ago, the judge handling the case-Judge William Alsup-ruled that Levandowsky knew or should have known he was in possession of this confidential material and barred Uber from using any of the technology brought by Levandowsky in their products. The judge’s order states that Waymo has produced “compelling evidence” that Levandowsky and Uber had planned the acquisition of Levandowsky’s firm before he had even left Waymo. The order also says that the evidence showed that Uber hired Levandowski even though they “knew or should have known that he possessed over 14,000 confidential Waymo files.” Judge Alsup’s order requires Uber to not to allow Levandowski to work on their Lidar project or use the files he downloaded for the duration of the lawsuit. It also requires them to return all the files to Waymo by this Wednesday, May 31st. Despite all this, the ruling has still been hailed as something of a victory for Uber. Waymo didn’t get their ultimate wish-shutting down Uber’s Lidar project entirely until the lawsuit is resolved. The court also didn’t consider some of the things claimed by Waymo as true trade secrets-not surprise given that Waymo had listed 121 potential trade secrets that were allegedly stolen. What’s more, while Waymo has succeeded in receiving an injunction on the issue of trade secret misappropriation, they have failed to do so on their second cause of action for patent infringement.

UberDespite this, the ruling is a huge blow against Uber’s self-driving car program. As the case goes on, it could get worse for both Uber and Levandowsky. Federal trade secret law includes potential repercussions in both civil and criminal law. Levandowski himself invoked his Fifth Amendment right to not incriminate himself when attorneys representing Waymo questioned him.

The trade secret rulings here are the meat of this order and the problems for both Uber and Levandowski. In this two-part article, let’s look at how civil and criminal trade secret law works and how it was applied in reaching this order.

How Civil Trade Secret Law Works

Waymo’s lawsuit against Uber is firmly in the realm of civil law. Thus, it is civil trade secret law that was used in reaching this ruling. Waymo’s lawsuit alleges violations of both the California Uniform Trade Secrets Act and the Defend Trade Secrets Act.

California’s Uniform Trade Secrets Act is one of the many nearly identical state laws handling trade secrets based on the Uniform Trade Secrets Act. Every state except New York, North Carolina and Massachusetts. It’s worth noting that near identical is not identical and many states have small but meaningful differences in their approach to trade secrets.

The Defend Trade Secrets Act is a federal law passed by the Obama administration in May of last year. It serves to extend the Economic Espionage Act of 1996 (basically federal criminal law applying to trade secret theft) to include a civil cause of action nearly identical to the Uniform Trade Secrets Act.

So what exactly is a trade secret? Any information can qualify so long as it fulfills certain criteria. First, the information must be more valuable for the very reason that it secret-if it isn’t actually secret it is basically impossible for this to be the case. Second, its owner must have taken reasonable steps under the circumstances to make sure it stays secret.

Where something that qualifies as a trade secret is misappropriated, that violates civil law. The California version of the Uniform Trade Secret Act (CUTSA) treats misappropriation as acquiring a trade secret through improper means or from somebody you know or have reason to know got the secret by improper means. It also includes using or disclosing a trade secret you acquired or at least should know was acquired by improper means. Improper means include, but aren’t limited to theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage. However, improper means never includes a situation where you figure out the trade secret on your own.

Mr. Levandowski left Waymo with confidential files his employment agreement clearly said were not his to take. The evidence shows that there is at least a strong chance Uber bought Levandowski’s firm knowing exactly what it was getting. This means that there is a strong case against both for misappropriating Waymo’s trade secrets. While not all of the things claimed as trade secrets by Waymo, as with most trade secret cases exactly what those secrets are is heavily redacted to maintain their secrecy, enough satisfied the test described above to put both Levandowski and Uber in hot water.

Injunction Against Uber

The order has granted a preliminary injunction against Waymo with the effects described above. A preliminary injunction is an order stopping a party to a lawsuit from doing something before the lawsuit even really gets underway.

In order to receive a preliminary injunction a party needs to show a likelihood that they’ll win, the potential that they will be harmed in a way money can’t fix, a public interest in such an injunction, and that they will be more harmed by the lack of an injunction than the party it’s brought against will be harmed by the injunction itself.

We’ve seen that there’s a pretty good case here for trade secret misappropriation. However, likelihood of success was where Waymo lost on their patent infringement arguments for the injunction-they simply didn’t have enough evidence.

In terms of irreparable harm, the technology in question has the potential to change who controls the burgeoning market of self-driving cars going forward. This is something of incalculable value and thus no simple money damages could properly address it. There is also a clear public interest in both protecting intellectual property rights and preventing unfair competition via potential corporate theft.

However, it is the balance of harms element that really led to the limitations that led to some calling the ruling an Uber victory. As serious as the harm would be to Waymo if the Lidar project used their trade secrets to advance their technology, shutting down Lidar altogether for the multiple years it will take for the lawsuit to resolve would kill Lidar altogether. This is extreme in the opposite direction, thus why the judge chose to simply prevent Lidar from using any of the secrets they may have misappropriated.

What Does This Mean For Uber and Levandowski?

The process of ensuring that none of Waymo’s documents, and the information contained therein, makes its way into the Lidar project is no mean feat and will certainly slow down Uber’s progress; giving Waymo a leg up on its competition. It also means that, at least for now, Uber may have spent nearly three-quarters of a billion dollars on nothing. The order also indicates a strong chance of success for Waymo in their trade secret action against Uber. This could lead to an enormous money judgment against Uber in the future.

As bad as it is for Uber, it’s much worse for Anthony Levandowski himself. The judge in this case has already referred his situation to the US Attorney’s Office, recommending criminal charges against Levandowski. This is an uncommon move on the part of this judge and could ultimately lead to up to fines of up to half a million against Levandowski and up to a decade in prison. Later this week, we’ll look into exactly how the criminal side of trade secret works. However, suffice it to say, Levandowski is facing down some serious charges.

Echo Look Revives Debate on Privacy Concerns

If you were told you could purchase a device which listens to everything you say throughout the day, and occasionally records what you say, you’d understandably be less than excited to buy now.  However, when that device comes with enormous potential for convenience–like the Amazon Echo or the Google Home–many have decided that the privacy concerns are not so bad as to put them off the device.

For those unfamiliar, the Amazon Echo (commonly referred to by the name it answers to-Alexa) and the Google Home are very similar to the Cortana or Siri devices on your phone-they take verbal commands and quickly send your request to a server which attempts to find an answer which is as responsive to your query as possible.  The main difference between the products is that while Siri is a tool you activate on your phone, the Echo and the Home are devices you place in your home and essentially leave on to respond to you whenever needed.

While on, these devices are always listening to what you say in order to listen for a “wake word” or command to start paying attention to whatever you say next.  Always listening does not mean always recording, both the Home and Alexa begin recording whatever you say as soon as you say a wake word-this recorded audio is sent to a server, associated with your personal account, and stored.

This obviously created enormous privacy concerns when these devices were initially released.  However, some but not all of the concerns were abated by the fact that you can mute the microphone when the devices are not in use-rendering the device useless until unmuted but keeping it from listening in general.  You can also disable audio recording and data sharing altogether for the Home but not the Echo.  However, doing so makes the Home completely inoperable.  Finally, you can delete your history of recorded requests online for both products-although both Google and Amazon recommend against it and neither are clear as to what data is stored after deletion.

These provisions, along with the privacy policies of both companies, have helped alleviate some-but not all of the privacy concerns since the products were released.  However, just recently, Amazon has announced the Echo Look-a product which adds a whole new layer of privacy concerns to the mix.

echo lookThe Echo Look

The Echo Look is essentially the Echo but with a camera which records and takes pictures of your outfits at your request.  At the moment, Amazon has said that the Echo Look is limited to pictures of fashion and the room you’re in.  However, they have made no assurances that this will continue to be the case.

As you might imagine, an enormous amount of information can be gleaned from any given picture and a company with as developed a machine learning algorithm for identifying what’s what in a picture as Amazon could parse the information in any given picture with great ease-then likely use that information to employ more targeted advertising for you.

Amazon Echo Look seems to be fairly secure, with numerous encryptions and security measures protecting the pictures you take and the camera itself.  This is good, cameras of this sort have a bit of history of poor security.  It was not so long ago that a search engine called Shodan was launched which allowed users to search and browse unsecured webcams.

You can see the privacy concerns raised by the Echo, Home, and Echo Look.  However, what does this mean from a legal standpoint?  The truth is, privacy law-beyond a few federal statutes-is primarily a matter of state by state legislation.  This is especially true in California where the state constitution explicitly includes a right to privacy.  However, no matter where you are, there are a few issues which could always come up as part of or as cause for a legal action.  Where your private data is breached by an outside party, an increasingly common occurrence, that can give rise to a lawsuit.  What’s more, companies are generally bound to their own privacy policies.  Where they ignore their own policy or mislead a consumer as to their privacy policies this can lead to legal hot water.    Finally, you have to ask how the data collected by these companies may be used by law enforcement.

Privacy Policies of the Echo and the Home

Both the Home and the Echo follow the privacy policies of the companies that made them-Google and Amazon respectively.  These are two companies with that gather and employ an enormous amount of data on their users.  Thus, they both have fairly robust privacy policies.  However, this does not mean that they will not and do not use or sell the data they collect about you.

Google’s privacy policy for the Home specifically states: “Google will share your information with companies, organizations, and individuals outside of Google if Google has a good-faith belief that access, use, preservation, or disclosure of the information is reasonably necessary to meet applicable law, regulation, legal process, or enforceable government request.” In short, it appears that Google doesn’t ask for your permission to share your voice recordings.”  They do promise not to share your personal information with anyone.  However, in a legal context this likely applies to personally identifiable information-information that can be used to identify you.  Other data, such as commonly sold aggregate data (information stripped of identifiers and sold to advertisers) is still fair game.  What’s more, they also do not limit their own uses of your data and likely use the information for targeted advertising purposes.

The Amazon Echo privacy policies are similar-allowing them the same leeway as Google’s policy.   However, both the Echo and the Echo Look policies promise explicitly not to use the data they collect to provide targeting advertising opportunities to  third-party companies.  They even give you the option to opt out of Amazon targeted advertising at this link.

One thing you’ll note in the Google policy, which is shared by the Amazon policy, is that it leaves the door open to share your data with law enforcement where required by law.  This makes sense, neither Amazon nor Google are looking to defy a valid court order.  However, the idea that the police might make use of all the data recorded on your device might be a bit concerning to some-and it’s a concern that has already come up in court.

Will Your Data Be Shared?

Just a few months back, Arkansas police sought a warrant demanding that Amazon turn over all the information recorded from the Amazon Echo of a murder suspect out of Bentonville by the name of James Andrew Bates.  After one Victor Collins was found dead in Mr. Bates’ hot tub, the police noted his Amazon Echo and sought the data from it.

Amazon initially resisted the demand for the evidence, arguing that the First Amendment protected the information recorded from the Echo and, because of this, the police needed to show a compelling need to access the information and no other way to get it.

At a minimum, a valid warrant requires probable cause (a fairly low standard requiring only a reasonable basis for believing evidence could be contained in the thing or place to be searched) and it must describe with particularity what the search would seek to find.

Searching through data to find evidence of a crime is nothing new, police have searched everything from cell phones to World of Warcraft chat logs.  These often require subpoenas or warrants to gather this information from a third party such as Amazon.  Here, there were a few potential issues with receiving a warrant-even beyond Amazon’s First Amendment arguments.  First, probable cause is a low bar-but it isn’t nothing.  The theory that an always-on recording device might have recorded information related to the crime is likely enough to meet the standard where it recorded near the crime.  However, the basis is a bit thin when you consider the device only records when a “wake word” is spoken.  Second, the warrant just asked for everything Amazon had ever recorded.  This in no way describes with particularity what is to be produced.  The police are very unlikely to need the times Mr. Bates asked Alexa how many feet are in a mile or for a good recipe for pork shoulder.

However, despite these issues, Amazon did end up producing the requested searches.  This was not because a court ruled against them, but rather because Mr. Bates ultimately consented to release the recordings of his own volition.  This left the issue without a satisfying conclusion as to legal precedent.  However, in the right circumstances, law enforcement could almost certainly obtain the data recorded from a Home, Echo, or Echo Look.

Is It Worth It?

As it is, trading privacy for convenience is so common in today’s online world as to be nearly unavoidable.  When it comes to the Echo or the Home, you have to ask yourself whether that trade off is worth it to use these devices.  Ultimately, all you can do is know your rights and make that decision for yourself.