• by Wendy Davis  @wendyndavis, January 12, 2024

Amazon users are pressing a federal appellate court to reinstate their lawsuit accusing the company of wrongly targeting ads based on people's voice interactions with Alexa-enabled devices.

In papers filed Thursday with the 9th Circuit Court of Appeals, attorneys for Ohio resident James Gray and Massachusetts resident Scott Horton ask the court to reject Amazon's argument that it disclosed its practices.

“Amazon offers up not one single disclosure anywhere on its website that says 'Alexa voice recordings may be used for targeted advertising purposes' or anything remotely equivalent,” counsel writes.

The new filing comes in a battle that began in 2022, when Gray and Horton alleged in a class-action complaint that Amazon violated Alexa users' privacy, and engaged in misleading and unfair conduct, by serving targeted ads based on voice interactions.

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.”

The authors didn't allege that Amazon secretly listened to conversations, or directly shared voice recordings with third parties.

Amazon responded by saying 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.

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 are now appealing to the 9th Circuit, arguing that Amazon's “Alexa-specific” policies don't say anything about targeted advertising.

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 countered in papers filed in November that Alexa's privacy policy discloses that the company “processes and retains” Alexa interactions in order “to provide, personalize, and improve our services.”

The company also argued that 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.

But lawyers for Gray and Horton say in their new papers that Amazon's disclosures were “at best ambiguous,” and that the user agreement “did not explicitly notify users of the practice at issue.” 

They add that while Amazon said Alexa data could be used to “personalize” or “improve” services, those words “can mean many different things in the context of an Alexa user’s experience.”

“Where Amazon provided illustrations of personalization and improvement of Alexa services in the user agreement, it never once mentioned targeted advertising,” counsel writes.

The 9th Circuit hasn't yet said when it will hear arguments in the case.