• by Wendy Davis  @wendyndavis, November 22, 2023

Amazon is urging a federal appeals court to reject users' request to revive claims that the company wrongly targeted ads to them based on their voice interactions with Alexa-enabled devices.

In papers filed Tuesday, Amazon argues that its privacy policies “widely and clearly” disclosed that its use of data derived from Alexa for ad purposes.

“If appellants were unaware of those practices, it is because they chose not to read Amazon’s terms,” the company wrote. “The law does not excuse willful ignorance.”

The company's new papers come in a battle dating to last year, when Ohio resident James Gray and Massachusetts resident Scott Horton alleged in a class-action complaint that Amazon violated Alexa users' privacy, and engaged in misleading and unfair conduct. They sued 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 surfaced, 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 researchers' paper.

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

U.S. District Court Judge Barbara Rothstein in the Western District of Washington dismissed the lawsuit in May, writing that the use of voice data for ad purposes was “contemplated in the applicable policies.”

Gray and Horton recently appealed to the 9th Circuit, arguing 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.

A Utah State University marketing professor sided with the consumers, arguing in a proposed friend-of-the-court brief that Amazon “obfuscated the purposes for which it was using consumer data.”

Amazon counters in its new court papers that Alexa's privacy policy tells users that Amazon “processes and retains your Alexa Interactions, such as your voice inputs, music playlists, and your Alexa to-do and shopping lists, in the cloud to provide, personalize, and improve our services.”

The company adds: “Thus, the user is immediately on notice that Amazon will use Alexa Interactions to 'personalize' the user’s experience.”

Amazon also says other documents -- including an Amazon.com privacy notice, Amazon.com conditions of use, and answers to frequently asked questions -- include disclosures about the use of personal information for advertising.

“In sum, all of these interrelated terms and disclosures make clear that customers’ interactions with the Alexa service might be used to serve interest-based or personalized advertisements, unless the user chooses to opt out,” Amazon writes.

The 9th Circuit hasn't yet set a date for a hearing in the case.