privacy recording consent
How are voice-operated smart devices legal in jurisdictions that require two-party consent for recording?
<p>Amazon's Alexa is the example that comes to mind the most.  It seems likely that Alexa would record people who are unaware they're being recorded.  Seems like it would violate two-party consent pretty much by definition.  The fact that Alexa and other voice-operated smart devices are legal everywhere makes me think I must be missing something.  So what am I missing?</p>

<p><strong>One-side recording prohibited without knowledge or continuous consent of all parties</strong></p>
<p>Under CIPA, it is prohibited to record even merely your own side of any telephone conversation without first informing  the informing whoever that is a party to the call — let alone both.  (<em>Gruber v. Yelp Inc.</em>, 55 Cal.App.5th 591, 269 Cal. Rptr. 3d 790 (Cal. Ct. App. 2020))</p>
<p>This may include communications where the recording party is the only party communicating since being provided information in confidence, for purposes of the California Invasion of Privacy Act, is communication protected by CIPA. (The first hand dissemination is prevented by recording that one has been informed of certain information.)</p>
<p>This makes it pretty clear that recording the <em>other</em> party or parties communication is at least equally protected and hence prohibited without the other parties’ knowledge.</p>
<p>In fact, “for purposes of section 632, the privacy rights affected are the same regardless whether a conversation is secretly recorded by a machine or monitored by a human being.” (<em>Kight v. Cashcall, Inc.</em> (2012) 200 Cal.App.4th 1377, 1393)</p>
<p>However, &quot;a conversation is confidential [only] if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.&quot; (<em>Flanagan v. Flanagan</em>, (2002) 27 Cal.4th 766, 768)</p>
<ol>
<li>No reasonable person would believe they can get up-to-date daily information (for e.g. news queries to Alexa) without first sending the request to the Internet. (It is theoretically possible to just download the whole thing — the Internet as updated since yesterday — every morning, but as absurd as it sounds to read this, it would sound equally absurd from a sane person to assert they believed that’s how Alexa worked)<sup>2</sup> Consent is not the crux of the inquiry, but a requisite to the privacy protection: An objectively reasonable expectation of privacy that an averge person would deem reasonable.</li>
</ol>
<p>One knowing that they will be or are being recorded rebut to them any expectation of privacy for purposes of CIPA, and an implied consent factual finding goes along with it if communication is not ceased — including verbal objections to the recording.</p>
<ol>
<li>And this is the key, one typically needs an account for an Alexa device to be set up:<sup>1</sup> The devil hides the details — that’s where you consented likely continuously, and acknowledged by agreement your understanding that the operation of the device requires one to be recorded along with that you will inform everyone getting near that thing.</li>
</ol>
<p>Further,</p>
<blockquote>
<p>when TechCrunch reached out to the major players in the smart[-]home space, only one device maker had a transparency report [on how many requests, subpoenas and search warrants they received, and how many of those they complied with,] and most [of these “players”] had no future plans to publish one — leaving consumers in the dark on how these companies protect your private information from overly broad demands.” (<a href="https://techcrunch.com/2018/11/14/amazon-echo-recordings-judge-murder-case/" rel="nofollow noreferrer">Judge orders Amazon to turn over Echo recordings, TechCrunch</a>)</p>
</blockquote>
<p>All this apart, inviting someone into your home unaware of Alexa ear-dropping is a CIPA violation, a matter of criminal law, by the person who knowingly allowed that to happen.</p>
<p><sup>1</sup> “When you speak to Alexa, a recording of what you asked Alexa is sent to Amazon's cloud, where we process your request and other information to respond to you.” — <a href="https://www.amazon.com/gp/help/customer/display.html?nodeId=GVP69FUJ48X9DK8V" rel="nofollow noreferrer">What happens when you speak to Alexa</a> (<a href="https://web.archive.org/web/20221008041731/https://www.amazon.com/gp/help/customer/display.html?nodeId=GVP69FUJ48X9DK8V" rel="nofollow noreferrer">Wayback archive</a>)</p>
<p><sup>2</sup> “Is Alexa recording all my conversations?” Yes. […] Audio is sent to and stored in the cloud unless the device fails to detect the wake word or is not activated by pressing a button.(<a href="https://www.amazon.com/gp/help/customer/display.html?nodeId=GVP69FUJ48X9DK8V" rel="nofollow noreferrer">https://www.amazon.com/gp/help/customer/display.html?nodeId=GVP69FUJ48X9DK8V</a>)</p>
