Having just fired up her Amazing Alexis and connected it with her other “smart” devices handling her heat, lights and security, Honor was sharing with her husband some troubling, sensitive health information about her trip that day to the doctor’s office. Honor’s tale was interrupted by a call from her brother who demanded “unplug your Alexis devices right now, You’re being hacked!” Sadly, Honor’s recorded tale also made its way to the editor of the neighborhood news-blog Gladys Gravits, who shared it in the community email, along with her effusive professions of sympathy. Does Honor have any recourse?

Probably. Texas law recognizes a claim for public disclosure of private facts which requires showing: (a) a form of publicity – print, photo, audio or video recording – given to matters concerning your private life, (b) the published facts are highly sensitive to a person of reasonable, ordinary sensibilities, and (c) the published information was not a legitimate public concern, or “newsworthy.”

Privacy-minded people have long feared that voice assistants like Amazon Alexa were little more than spies in disguise. In the latest “smart devices,” microphones are always listening and waiting to be activated upon your command. In a recent Oregon situation, an unintended Alexa communications was explained as “waking up to a word in a background conversation sounding like ‘Alexa’ and the subsequent conversation was heard as a ‘send message’ request to a name in the customer’s contact list, Alexa allegedly would have asked out loud, ‘[contact name], right?’ and then interpreted background conversation as ‘right,’” reported Amazon.

For What Damages and Against Whom?

If published and determined not to be newsworthy, Honor has a claim against Gladys Gravits for general and special damages – usually relating to emotional distress – and sometimes even for recovery of costs and attorney’s fees. Honor might even have a claim against the manufacturer of Amazing Alexis. Was the device properly protected against such an event? Did it know that there were problems with Amazing Alexis recording and disseminating private conversations? Perhaps. And, if so, any one or more of the manufacturer, distributor or seller of Amazing Alexis might be held responsible.

Tilting the Scales in Your Favor

Without knowing how often these happen, the “open mic” of so many voice-assisted devices coupled with the nigh-ubiquitous network of “smart devices,” other gadgets and gizmos increasingly listening to everything said around them certainly presents opportunity for mistake – and, perhaps, hacking. So, what can you do?

  1. Opt not to share your contact list with the “smart” device to avoid an errant communication;
  2. Check the device’s app history, browse all the commands you’ve ever given and consider deleting some of them;
  3. Remove any duplicate devices from sensitive rooms, like your bedrooms. You DO KNOW that some devices can take video and still pictures, right?
  4. Turn off or mute the device’s mic by pressing the microphone button, but just remember you won’t be able to give it commands like play music or ask for the weather or news of the day.