The plaintiffs contending that Amazon’s voice-activated smart speaker ‘Alexa’ illegally records conversations not triggered by a “wake word,” have scored a partial victory in their Seattle, Wash. class action. Judge Robert Lasnik’s opinion permitted some of the plaintiffs’ claims to proceed, in part based on whether they were registered Alexa users who agreed to Amazon’s terms of use.
Consumers first accused Amazon of violating state and federal wiretap acts, the Washington Consumer Protection Act (CPA) and the Federal Stored Communications Act last June. They argued that Alexa devices record, store, and transmit recordings to third parties, including human reviewers, in the absence of a wake word. This is so, despite users’ reasonable expectation that devices would respond to a question or command only if preceded by a wake word and that the communication would be stored only long enough to process it and generate a response.
Amazon moved to dismiss last October. It also requested a discovery stay, which the court denied as prejudicial to the plaintiffs in March.
In last week’s 28-page opinion, the court first ruled that Washington law applies to the plaintiffs’ claims. Turning to the registered users’ state law wiretap claims, the court focused on the issue of consent, examined the information presented during the registration process, and found that the registered user plaintiffs ultimately consented to audio recording, defeating both their state and federal claims.
By contrast, the non-registered user plaintiffs’ claims were allowed to proceed precisely because they did not agree to Amazon’s terms of use. With regard to their federal claim, and in instances where “Amazon starts recording private conversations not directed toward Alexa and not preceded by the wake word, one could reasonably conclude that Amazon is an interloper rather than a party to the communication,” the court opined in partly allowing the cause of action to proceed.
Judge Lasnik also left standing the plaintiffs’ CPA claim. He overrode opposition from Amazon, reasoning that the users pointed to specific representations and omissions about the way the device works. The opinion offered up comments made by a Senior Vice President at Amazon.com, “acknowledging that Amazon could have been ‘more clear on how we were using human beings to annotate a small percentage of the data’ and that ‘customers didn’t clearly understand this’ aspect of the device.”
Lastly, the plaintiffs’ Federal Stored Communications Act claim fell away because they failed to plead allegations demonstrating Amazon, in this capacity, was acting as an “electronic communication service.”
Labaton Sucharow LLP and Robbins Geller Rudman& Dowd LLP are interim co-lead class counsel and Fenwick & West LLP represents Amazon.
