How are voice-operated smart devices legal in jurisdictions that require two-party consent for recording?

Question

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?

Answer 1

One-side recording prohibited without knowledge or continuous consent of all parties

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. (Gruber v. Yelp Inc., 55 Cal.App.5th 591, 269 Cal. Rptr. 3d 790 (Cal. Ct. App. 2020))

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.)

This makes it pretty clear that recording the other party or parties communication is at least equally protected and hence prohibited without the other parties’ knowledge.

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.” (Kight v. Cashcall, Inc. (2012) 200 Cal.App.4th 1377, 1393)

However, "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." (Flanagan v. Flanagan, (2002) 27 Cal.4th 766, 768)

1. 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)² 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.

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.

1. And this is the key, one typically needs an account for an Alexa device to be set up:¹ 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.

Further,

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.” (Judge orders Amazon to turn over Echo recordings, TechCrunch)

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.

¹ “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.” — What happens when you speak to Alexa (Wayback archive)

² “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.(https://www.amazon.com/gp/help/customer/display.html?nodeId=GVP69FUJ48X9DK8V)

Answer 2

Alexa being a program, there is only one actual party to the "conversation". Florida being an all-party state, we can look at that law. The law doesn't just prohibit recording a communication, it prohibits "intercepting". The scope of the law is expressed as applying to anyone who

Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication

An interesting thing about these laws is that a lot of the substance is buried in a different section, the definitions (§934.02). Thus,

(2) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.

Furthermore,to be clear,

(3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

No statute defines "communication", so we have to turn to the ordinary meaning of "communication". Using the Merriam-Webster dictionary definition, communication is

a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior

It would not be hard to establish through expert testimony that "exchange of information between individuals" is an essential element of "communication". The act of recording yourself, or interacting vocally with an inanimate object is not communication: therefore, the prohibition against intercepting an oral communication is not applicable.

It is possible that you previously consented to The Company storing a version of your query, or even that you were told (thus blanket-waived the consent requirement) that "to improve customer service, we may record this interaction". If the device-owner gave blanket consent and then allowed you to use his device to get the time, they might he held liable for procuring you to use the electronic device to intercept an oral communication, which is also illegal (except that a dictation to an inanimate object is not a communication).

However, a voice-activated device could also be present in a room when two people are having an actual conversation, just as a tape recorder or hidden microphone could be present. In an all-party state, all parties to the conversation must consent to the interception. From a practical perspective, that would mean that the device-owner would somehow have to deactivate the device in case there is a real conversation (not a person-to-machine soliloquy) in the room. If not, the device-owner could be prosecuted for violation of the wiretap law.