Amazon wins partial dismissal in Alexa wiretapping class action

SEATTLE (CN) — A federal judge on Tuesday trimmed a class action accusing Amazon of misleading users about Alexa recordings, but allowed certain wiretap claims to proceed.

U.S. District Judge Robert Lasnik, a Bill Clinton appointee, dismissed claims brought under the Washington Consumer Protection Act and wiretap claims from three plaintiffs. But, he allowed wiretap claims brought under Florida and Maryland to proceed, along with federal wiretap claims related to “false wakes” of Alexa devices.

Alexa, the online retail giant’s virtual assistant, is available on a variety of devices that can perform tasks like setting timers, changing music or controlling smart home functions and activates when it detects a “wake word” from users, such as the name “Alexa.”

In 2021, a group of people with Alexa devices in their homes sued Amazon, accusing the company of deceptively failing to disclose that Alexa-enabled devices are susceptible to “false wakes” and record short bits of audio just before a wake word is spoken. They claim Amazon retains the snippets of audio even after confirming it wasn’t meant for Alexa and sometimes denies requests to delete the recordings.

However, Lasnik found the company was more forthcoming than the plaintiffs had characterized and dropped the claims brought under the Washington Consumer Protection Act.

The plaintiffs pointed to evidence suggesting Alexa devices have encountered false wakes hundreds of millions of times since the devices were introduced. Lasnik said it was “not clear where the deception lies,” as the company has disclosed how and why the false wakes occur, such as in households that include people who happen to be named Alexa or drive a Lexus.

The company also disclosed that audio would be streamed and recorded when a wake word is detected, including audio from a few seconds before the wake word.

“​​Again, there can be no deception when the applicable disclosures do not conceal but instead contemplate the very practice of which plaintiffs complain,” Lasnik wrote.

The plaintiffs also accused Amazon of hiding the fact it retains and reviews false wake data and that human reviewers may be involved. Lasnik once more found that the company’s frequently asked questions page has clearly disclosed the data retention since at least 2019.

The judge also found the company clearly and repeatedly disclosed that it retained the data and used it to improve its services.

“​​The ‘services’ that might benefit from use of the retained Alexa data were not limited in any way other than that they belong to or are offered by Amazon,” Lasnik wrote. “Plaintiffs offer no theory or explanation for their bald assertion that Amazon’s disclosures regarding what it did with the Alexa data was deceptive.”

Lasnik determined that the only potentially deceptive conduct in the case involves how Amazon retains and deletes false wake data.

However, Amazon provided evidence that none of the false wake recordings associated with the plaintiffs’ accounts were reviewed by humans and none of the plaintiffs requested that the company delete their Alexa recordings.

Lasnik dismissed wiretap claims from three of the plaintiffs — finding they registered the devices themselves and had agreed to Amazon’s terms — but allowed wiretap claims from plaintiffs who had not registered the devices themselves but lived in a household with a device to continue under the laws of their own states.

Additionally, Lasnik allowed the non-registrant plaintiffs’ federal wiretap claims to move forward. Federal wiretap law blocks the interception of any spoken communication and the disclosure of those intercepted communications.

Amazon argued that false wake recordings don’t violate the federal wiretap law because the interception isn’t intentional and argued the plaintiffs lack a reasonable expectation that their communications wouldn’t be intercepted. Lasnik found it raised questions better left for a jury.

“Whether such interceptions are intentional and whether the non-registrants should have known prior to filing this lawsuit that having an Alexa device in their homes meant their conversations were subject to interception will have to be determined on a case-by-case basis by the fact finder,” Lasnik wrote.

Neither Amazon nor the plaintiffs responded to a request for comment before press time.