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Law in the Internet Society
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Alexa isn't safe for work for lawyers,so why do lawyers still use her?-- By AyeletBentley - 03 Dec 2019 Legal ramifications of Alexa have been discussed in relation to Alexa recordings as evidence in court. This paper, however, discusses a different legal issue: can lawyers ethically have Alexa? After deciding lawyers cannot it asks, why do lawyers still use them? And, what liability do companies making these devices have for not warning? Many are momentarily disturbed when they realize the breadth of Alexa privacy concerns, but they find asking Alexa what time it is worth the privacy loss. However, for lawyers and law firms bound by Rules of Professional Responsibility, this lax view is not an option. Case.one and Thomas Reuters have designed Alexa apps to assist law firms with billing and case look up respectively, showing Alexa is not only used by lawyers but used for law work. This paper begins by going through how Alexa captures and uses data. It then looks at how this data use interacts with Rules of Professional Responsibility. Then it looks at why lawyers still use them and whether the companies can be responsible for this use.ALEXA'S PRIVACY CONCERNSIt seems obvious that a listening/spy device that sends conversations to Amazon is prohibited for lawyers. Yet, lawyers still use them. When Alexa listens, the clips she records are not destroyed after she responds, but are stored indefinitely (or until someone deletes them). One can listen to every conversation they have had with Alexa on their account. A clear issue apparent when doing this is that the conversations are not necessarily preceded by a “wake word” as Amazon claims. Further, Alexa automatically records the few seconds preceding the “wake word.” Another serious professional responsibility concern is that Amazon employees listen to these recordings. Amazon itself has admitted to this. Amazon claims they take privacy seriously and only a small fraction of conversations from a random set of customers are listened to. However, any conversation could be listened to and even if the specific one isn’t, Amazon could listen to it. Any expectation of privacy is lost. A lawyer’s confidentiality duty is covered by Rule 1.6. Rule 1.6 states lawyers are not to reveal information related to the representation of the client unless 1) the client gives informed consent, 2) the disclosure is implied in order to carry out duties of representation, or 3) a number of exceptions including protecting the client or third parties from death or if the client is about to commit a crime. For this analysis number three is outside the scope since it is case-specific. However, this paragraph analyzes how Alexa breaches a lawyer’s duty to confidentiality and why Alexa is not covered by the exceptions. Speaking to Alexa is likely third party disclosure. Humans listen to Alexa. Since Alexa records and sends snippets of conversations not preceded by a wake word this is particularly concerning. A lawyer or law firm cannot just avoid saying “Alexa” when discussing client matters. Thus, for lawyers to have Alexa her use would have to be covered by third-party disclosure allowances of Rule 1.6. Perhaps lawyers could receive informed consent putting Alexa into an information disclosure form that their client signs. Besides the face value absurdity of this, this could run into a problem because 1) the client does not know specifically what matters would be shared with Alexa and 2) neither the lawyer nor client knows who will actually be listening. An even more troubling argument would be that the disclosure is implied to carry out duties. One could argue that as long as the client sees Alexa when walking into the law office, there is implied consent. This, however, would be a bad argument. It doesn’t cover home Alexas for when lawyers work from home, assumes a knowledge by clients that actual humans are listening, and opens up a slippery slope of assumptions.WHY DO LAWYERS IGNORE THIS?If lawyers are aware that Alexa listens and that this should violate legal ethics, why are they determined not to perceive this? Probably most often they choose to ignore it in the same way as anyone else aware of the privacy risks who appreciates asking Alexa the weather. Further, Case.one and Thomas Reuters’ apps for Alexa make Alexa seem not only allowed but almost condoned for lawyers since the Apps are made just for their jobs. Further, perhaps since the ABA has not released anything saying it is prohibited, people assume it is allowed. Most writing about it discusses the issues but does not say it is prohibited, only that lawyers should take caution. Since lawyers have lawyer friends who use them, there is an assumption that perhaps nothing is wrong with it. This is a topic the ABA should speak up on and likely one professional responsibility classes should discuss.ARE AMAZON AND GOOGLE LIABLE?Finally, could Amazon, Google, and others be held responsible for not warning professionals that device use may violate professional ethics? Probably not. Companies can be held liable for not warning when the product is dangerous the danger should be or is known by the manufacturer, but not the consumer, and the defect occurs when the product is used in the normal way. The dangers of using Alexa and violating professional ethics are different than the physical dangers covered in danger to warn. Further, manufacturers may not be required to warn when dealing with sophisticated users. A lawyer, who herself should know the laws of professional ethics, may be a sophisticated user. However, she may not be sophisticated as to the technical issues of Alexa’s privacy. That said, Alexa’s terms of use do discuss that Alexa records and stores conversations. If anyone is a sophisticated user as to reading terms of use, lawyers should be the ones. Perhaps other professionals, less sophisticated in terms of use, such as doctors should lead an action for lack of duty to warn. There is a class-action lawsuit against Alexa for allegedly illegally recording children’s voices. However, children who have not consented are different than professionals who choose not to read the terms of use.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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