• by Wendy Davis  @wendyndavis, October 4, 2023

Two Amazon users are asking an appellate court to revive a privacy lawsuit claiming the company wrongly targets ads to consumers based on their interactions with Alexa voice-controlled devices.

A trial judge dismissed the case in May, ruling that even if the allegations in the suit were proven true, they wouldn't show that Amazon misrepresented its privacy practices regarding Alexa.

U.S. District Court Judge Barbara Rothstein in the Western District of Washington wrote at the time that the “voice data for advertising purposes” was “contemplated in the applicable policies.”

Ohio resident James Gray and Massachusetts resident Scott Horton are now asking the 9th Circuit Court of Appeals to reverse Rothstein's ruling and reinstate their claims.

“Although Amazon discloses that it uses certain customer data obtained through its retail website to generate and sell targeted advertising, it never disclosed or obtained user authorization for use of Alexa-captured voice recordings for targeted advertising purposes,” attorneys for Gray and Horton write in papers filed late last week.

They add that Amazon “repeatedly and unequivocally represented that it did not use voice recordings collected through Alexa devices to serve targeted ads to customers.”

The battle dates to June 2022, when Gray and Horton alleged in a class-action complaint that Amazon violated Alexa users' privacy, and engaged in misleading and unfair conduct. They brought suit soon after researchers from the University of Washington, University of California-Davis, University of California-Irvine, and Northeastern University posted the paper “Your Echoes are Heard: Tracking, Profiling, and Ad Targeting in the Amazon Smart Speaker Ecosystem,” which concluded that Amazon “processes voice data to infer user interests.”

That report doesn't allege that Amazon secretly listened to conversations, or directly shared voice recordings with third parties.

After the paper was posted, Amazon said it “is not in the business of selling data,” and doesn't share Alexa requests with ad networks.

At the same time, the company acknowledged it targeted ads to consumers based on their transactions with Alexa.

“Similar to what you'd experience if you made a purchase on Amazon.com or requested a song through Amazon Music, if you ask Alexa to order paper towels or to play a song on Amazon Music, the record of that purchase or song play may inform relevant ads shown on Amazon or other sites where Amazon places ads,” the company stated in response to the paper.

But Gray and Horton contend that Amazon's harnessing of voice-transactions for ad targeting contradicts the company's numerous statements to the media -- including NBC and The New York Times -- that Alexa doesn't use voice recordings for targeted advertising. 

Amazon essentially countered in prior court papers that records of transactions fundamentally differ from other types of voice recordings.

“If a customer buys dog toys from Amazon, that fact can be used to generate interest-based ads, regardless of whether the customer ordered by typing on amazon.com or speaking a voice command to an Alexa-enabled device,” the company argued to Rothstein last year. “Records of the customer’s transactions, whatever the input medium, are different from Alexa voice recordings or transcripts themselves,” Amazon added.

The company also said its privacy policy discloses that transaction data can be used to target ads.

Gray and Horton argue to the 9th Circuit that Amazon's “Alexa-specific” policies don't say anything about targeted advertising.

“Every provision in the User Agreement that describes how Amazon uses voice recordings, both in the Alexa-Specific Terms and in the Amazon Generic Terms, provides the same exhaustive list that neither includes anything remotely resembling advertising nor suggests that the list is incomplete,” their lawyers write.

Amazon is expected to file its response with the 9th Circuit later this month.