Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 1 of 28
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`KAELI GARNER, et al.,
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`Cause No. C21-0750RSL
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`Plaintiffs,
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`v.
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`AMAZON.COM, INC., et al.,
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`ORDER GRANTING IN
`PART DEFENDANTS’
`MOTION TO DISMISS
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`Defendants.
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`This matter comes before the Court on defendants’ “Motion to Dismiss First Amended
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`Consolidated Complaint” (Dkt. # 63) and a “Request for Judicial Notice” in support of that
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`motion (Dkt. # 64). Plaintiffs allege that (1) Amazon’s Alexa devices record, permanently store,
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`use, and transmit to third parties (including human reviewers) communications in the absence of
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`a wake word and (2) plaintiffs reasonably expected that the devices would respond to a question
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`or command only if the wake word were used and that, in doing so, the question or command
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`would be stored only long enough to process the communication and generate a response.
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`Plaintiffs further allege that Alexa devices are fully capable of functioning without the need to
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`record, store, and/or share voice recordings. The named plaintiffs either live in a household with
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 1
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 2 of 28
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`an Alexa device they registered themselves (“registered users”) or live in a household with an
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`Alexa device that was registered by someone else (“unregistered users”).
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`In the pending motion to dismiss, defendants assert (a) that Washington law governs the
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`claims of registered users, all of whom agreed to Amazon’s Conditions of Use, (b) that all
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`claims brought by registered users under other states’ laws must be dismissed in favor of
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`Washington law, and (c) that the registered users have consented to the recordings at issue in the
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`First Amended Consolidated Complaint and cannot plausibly allege a violation of Washington’s
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`wiretap law. With regards to unregistered users, defendants argue that they impliedly consented
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`to the voice recordings under Washington law1 because they knew or should have known the
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`way Alexa works and because the recordings to which plaintiffs object are inherent in the
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`technology plaintiffs used. Defendants seek dismissal of plaintiffs’ Washington Consumer
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`Protection Act claims for failure to plausibly allege an unfair or deceptive practice or injury to
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`business or property, dismissal of the Federal Wiretap Act claims because defendants were the
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`intended recipients of the communications, and dismissal of the Federal Stored Communications
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`Act claims for failure to plausibly allege that Alexa is an electronic communication service, that
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`the recordings are in electronic storage, or that they were divulged to a third party.
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`The question for the Court on a motion to dismiss is whether the facts alleged in the
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`complaint sufficiently state a “plausible” ground for relief. Bell Atl. Corp. v. Twombly, 550 U.S.
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`1 Defendants do not explain why Washington law applies to the claims of unregistered users and
`have not sought dismissal of the claims brought by unregistered users under other states’ wiretapping
`laws.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 2
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 3 of 28
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`544, 570 (2007). In the context of a motion under Rule 12(b)(6) of the Federal Rules of Civil
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`Procedure, the Court must “accept factual allegations in the complaint as true and construe the
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`pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &
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`Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted). The Court’s review is
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`generally limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479
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`(9th Cir. 1996). “We are not, however, required to accept as true allegations that contradict
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`exhibits attached to the Complaint or matters properly subject to judicial notice, or allegations
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`that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
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`Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
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`To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
`“enough facts to state a claim to relief that is plausible on its face.” []Twombly,
`550 U.S. [at 570]. A plausible claim includes “factual content that allows the court
`to draw the reasonable inference that the defendant is liable for the misconduct
`alleged.” U.S. v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011) (quoting
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under the pleading standards of Rule
`8(a)(2), a party must make a “short and plain statement of the claim showing that
`the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). . . . A complaint “that
`offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
`of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
`Thus, “conclusory allegations of law and unwarranted inferences are insufficient
`to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.
`2004).
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`Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1144–45 (9th Cir. 2021). If the complaint fails
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`to state a cognizable legal theory or fails to provide sufficient facts to support a claim, dismissal
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 3
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 4 of 28
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`is appropriate. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
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`2010).
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` Having reviewed the memoranda, declarations, and exhibits submitted by the parties and
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`having heard the arguments of counsel, the Court finds as follows:
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`A. Request for Judicial Notice
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`When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court’s review is
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`generally limited to the allegations of the complaint, documents attached to or incorporated by
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`reference into the complaint, and matters of judicial notice. United States v. Ritchie, 342 F.3d
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`903, 907 (9th Cir. 2003). Defendants assert that the First Amended Consolidated Complaint
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`expressly references and/or is based upon three documents found on their website (the “Alexa
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`and Alexa Device FAQs,” the “Alexa Terms of Use,” and “Alexa, Echo Devices, and Your
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`Privacy”) and a survey published on www.researchgate.net entitled “Privacy Attitudes of Smart
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`Speaker Users.” They request that the Court take judicial notice of the same.
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`1. Incorporation by Reference
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`A document that is not physically attached to a complaint may nevertheless be
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`incorporated by reference into a complaint “if the plaintiff refers extensively to the document or
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`the document forms the basis of the plaintiff’s claim.” Ritchie, 342 F.3d at 908. Mere reference
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`to a document in the complaint is not sufficient: rather, the document must be integral to or form
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`the basis of plaintiff’s claims. Id. at 908-09. In addition, the document’s authenticity must not be
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`in question and there must be no disputed issues as to the document’s relevance. Coto Settlement
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 4
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 5 of 28
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`v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citations omitted). The authenticity of the
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`four documents is not disputed, and defendants concede that the handful of references to those
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`documents is not “extensive.”2 The issue, then, is whether the FAQs, Terms of Use, Your
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`Privacy document, and Privacy Survey serve as the basis for plaintiff’s claims.
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`Although the references to the FAQs, the Terms of Use, and the Privacy Notice are few
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`and far between, they play an important function in the First Amended Consolidated Complaint,
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`offered to bolster plaintiffs’ allegations that Amazon failed to adequately disclose how Alexa
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`works and to show what Amazon does with a user’s communications. Whether Amazon
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`misrepresented or omitted key facts or whether it failed to announce in an effective manner that
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`it records, stores, and reviews communications occurring near Alexa are critical elements of the
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`First Amended Consolidated Complaint for which plaintiffs rely, at least in part, on Amazon’s
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`public-facing documents. As was the case in Coto Settlement, these facts suggest that the
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`documents are integral to at least some of plaintiffs’ claims and can be considered on a motion
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`to dismiss. 593 F.3d at 1038.
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`With regards to the Privacy Survey, there are very limited references to the document
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`and, while plaintiffs incorporate certain statements contained therein into the First Amended
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`Consolidated Complaint, they in no way vouch for the accuracy of the entire document. Nor do
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`their claims depend on the Privacy Survey itself. Rather, the survey is cited to support plaintiffs’
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`2 Plaintiffs chose not to raise their relevance objection in their opposition to the request for
`judicial notice. The relevance of the documents is therefore considered when discussing the claims
`asserted.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 5
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 6 of 28
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`contention that users of Alexa are generally unaware that a recording of their interactions is
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`made, a factual allegation that could have been asserted without citation to this document. If
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`defendants intend to dispute plaintiffs’ allegations that users are unaware of how Alexa works,
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`they will have to do so through the presentation of contrary evidence on summary judgment, not
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`by incorporating a non-integral document into the complaint.
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`2. Judicial Notice
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`As an alternative to incorporation by reference, the Court could take judicial notice of the
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`Privacy Survey. Pursuant to Federal Rule of Evidence 201(b), facts that can be judicially noticed
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`“are not subject to reasonable dispute” because it “is generally known” or “can be accurately
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`and readily determined from sources whose accuracy cannot reasonably be questioned.”
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`Amazon argues that the Privacy Survey can be considered in the context of the motion to
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`dismiss because it was published on the internet and, having cited it themselves, plaintiffs have
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`not disputed its existence, authenticity, or accuracy. See Daniels-Hall, 629 F.3d at 998-99
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`(taking judicial notice of a list of approved vendors “displayed publicly” on websites). The
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`Privacy Survey meets the standards for judicial notice set forth in Federal Rule of Evidence
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`201(b).
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 6
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 7 of 28
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`3. Scope of the Judicial Notice
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`In the circumstances presented here, neither incorporation by reference nor judicial notice
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`under Rule 201 means that the Court must accept the statements contained in the documents as
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`true. Plaintiffs’ cite the FAQs, Terms of Use, and Privacy Notice document as support for
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`specific factual assertions or to show how Amazon represented the Alexa devices to users. Their
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`use does not suggest that they vouch for the accuracy of the cited documents or even the
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`accuracy of the statements they quote. The accuracy of every statement contained therein will
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`not be presumed simply because the document was cited for certain purposes. See Khoja v.
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`Orexigen Therapeutics, Inc., 899 F.3d 988, 1014-15 (9th Cir. 2018); Lopez v. Apple, Inc., No.
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`19-CV-04577-JSW, 2021 WL 4059106, at *2 n.2 (N.D. Cal. Sept. 2, 2021). With regard to the
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`Privacy Survey, “[c]ourts may take judicial notice of publications introduced to indicate what
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`was in the public realm at the time, not whether the contents of those articles were in fact true.”
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`Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010)
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`(internal quotation marks and citations omitted); Gerritsen v. Warner Bros. Entm’t Inc., 112 F.
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`Supp.3d 1011, 1029 (C.D. Cal. 2015) (collecting cases). The Court will therefore consider the
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`four documents for purposes of understanding what representations were in the public realm at a
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`particular time, not for the truth of those representations.
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`B. Choice of Law
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`Defendants maintain that the wiretapping claims asserted by registered users of an Alexa
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`device are governed by Washington law under the governing Conditions of Use, which provide
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 7
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 8 of 28
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`that use of any Amazon service constitutes agreement “that applicable federal law, and the laws
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`of the state of Washington, without regard to principles of conflict of laws, will govern these
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`Conditions of Use and any dispute of any sort that might arise between you and Amazon.” Dkt.
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`# 59 at 94. They therefore request that all claims brought by registered users under the wiretap
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`laws of other states be dismissed. Plaintiffs agree that Washington law likely governs the
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`wiretap claims of all registered users, but comes to that conclusion under Washington’s “most
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`significant relationship” test rather than under a contract analysis. Plaintiffs argue that the
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`contractual choice of law provision does not apply to the tort claims asserted here and that a full
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`choice of law analysis at this stage would be premature. They request that the non-Washington
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`wiretap claims be permitted to proceed until the parties are able to take discovery and address
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`the respective states’ interests under the “most significant relationship” test.
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`To the extent plaintiffs are arguing that a choice of law cannot be made at the pleading
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`stage, the Court disagrees. “The question of whether a choice-of-law analysis can be properly
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`conducted at the motion to dismiss stage depends on the individual case. . . . As long as a court
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`has sufficient information to thoroughly analyze the choice-of-law issue . . . and discovery will
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`not likely affect the analysis . . . , it is appropriate for the Court to undertake a choice-of-law
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`analysis at the motion-to-dismiss stage.” Bartel v. Tokyo Elec. Power Co., Inc., 371 F. Supp.3d
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`769, 790 (S.D. Cal. 2019) (internal citations and quotation marks omitted). Plaintiffs have not
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`identified any facts that need to be discovered or which “may develop in a number of ways
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`before us at trial, reducing our opinion to nothing more than an advisory opinion.” Southwell v.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 8
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 9 of 28
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`Widing Transp., Inc., 101 Wn.2d 200, 207 (1984). Nor is there any real dispute regarding the
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`forum’s choice-of-law rules. Thus, there is no reason to delay making the choice of law
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`determination in this case. See Cooper v. Tokyo Elec. Power Co. Holdings, Inc., 960 F.3d 549,
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`558-59 (9th Cir. 2020), cert. denied, 141 S. Ct. 1735, 209 L. Ed. 2d 503 (2021).
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`Whether claims arising in tort are controlled by a choice-of-law provision in a related
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`contract is not entirely clear under Washington law. Compare Haberman v. Wash. Pub. Power
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`Supply Sys., 109 Wn.2d 107, 159 (1987) (“Although a choice of law provision in a contract does
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`not govern tort claims arising out of the contract, it may be considered as an element in the most
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`significant relationship test used in tort cases”) with Schnall v. AT & T Wireless Servs., Inc., 171
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`Wn.2d 260, 269 (2011) (applying contractual choice-of-law provision to both contract and
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`Consumer Protection Act claims). Regardless, the Court finds that Washington law applies to
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`the wiretap claims asserted in this case.
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`“[W]hen choice of law is disputed, there must be an actual conflict between the laws or
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`interests of Washington and the laws or interests of another state before Washington courts will
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`engage in a conflict of laws analysis.” FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp.
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`Holdings, Inc., 180 Wn.2d 954, 967 (2014). As an initial matter, there does not appear to be any
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`dispute about which law applies. Defendants contend that Washington law governs the wiretap
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`claims of registered users, a contention with which plaintiffs “preliminarily agree” without
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`identifying any factual or legal issue that suggests a different choice. Dkt. # 65 at 20. In fact,
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`plaintiffs affirmatively argue that Washington has the most significant relationship to the dispute
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 9
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`and to the parties. Dkt. # 65 at 19-20. Second, plaintiffs make no effort to dispute or rebut
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`defendants’ showing that there is no actual conflict between Washington’s wiretap law and the
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`wiretap laws of California, Florida, Illinois, Maryland, Massachusetts, Michigan, New
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`Hampshire, or Pennsylvania. Absent a showing that the result for a particular issue would be
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`different under the laws of the competing states, there is no “real” conflict, and the local law of
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`the forum is applied. Woodward v. Taylor, 184 Wn.2d 911, 917 (2016); Erwin v. Cotter Health
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`Ctrs., 161 Wn.2d 676, 692 (2007).
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`Even if the Court assumes that the contractual choice-of-law provision does not apply to
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`plaintiffs’ wiretap claims, that there is a dispute as to the appropriate choice of law with regards
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`to that claim, and that an actual conflict exists, application of Washington’s choice-of-law rules
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`leads to the conclusion that Washington’s wiretap law applies. Washington utilizes a two-step
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`“most significant relationship” test set forth in Restatement (Second) of Conflicts of Laws ¶¶ 6
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`and 145-46. Woodward, 184 Wn.2d at 917.
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`For the first part of the most significant relationship test, the court evaluates the
`contacts each interested jurisdiction has with the parties and the occurrence under
`the factors of Restatement section 1453 plus any more specific section of the
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`3 Pursuant to Restatement § 145(2), the contacts to be taken into account when determining
`which state has the most significant relationship to a tort claim include:
`(a) the place where the injury occurred,
`(b) the place where the conduct causing the injury occurred,
`(c) the domicil, residence, nationality, place of incorporation and place of business of the parties,
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`(d) the place where the relationship, if any, between the parties is centered.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 10
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 11 of 28
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`Restatement that is relevant to the cause of action. The approach is not merely to
`count contacts, but rather to consider which contacts are most significant and to
`determine where these contacts are found.
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`For the second part of the most significant relationship test, the court must then
`evaluate the interests and policies of the potentially concerned jurisdictions by
`applying the factors set forth in Restatement section 6.4
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`Woodward, 184 Wn.2d at 918-19 (internal footnotes, citations, and quotation marks omitted).
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`This two-part test leads to the conclusion that Washington law applies where the injury-causing
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`conduct (the design, marketing, and sale of products that unlawfully record conversations)
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`occurred in or was orchestrated from Washington, the place of injury (the location of the
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`millions of devices sold) was fortuitous and widespread, the wiretap laws of the other interested
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`states are similar such that the legislative interests of other states can be protected under
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`These contacts are to be evaluated according to their relative importance with respect to the
`particular issue.
`The general rule that the local law of the state where the injury occurred applies in a personal injury
`action gives way when some other state has a more “significant relationship under the principles stated
`in § 6 to the occurrence and the parties.” Restatement § 145(1) and § 146.
`4 Pursuant to Restatement (Second) of Conflict of Laws § 6 (1971), the factors relevant to the
`choice of the applicable rule of law include
`(a) the needs of the interstate and international systems,
`(b) the relevant policies of the forum,
`(c) the relevant policies of other interested states and the relative interests of those states in the
`determination of the particular issue,
`(d) the protection of justified expectations,
`(e) the basic policies underlying the particular field of law,
`(f) certainty, predictability and uniformity of result, and
`(g) ease in the determination and application of the law to be applied.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 11
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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 12 of 28
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`Washington law, and application of Washington law is consistent with the expectations of the
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`parties as indicated in their contractual choice-of-law provision.5
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`C. Wiretap Claims Under Washington Law
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`Washington’s wiretap law makes it unlawful to use “any device electronic or otherwise
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`designed to record and/or transmit” a private conversation without first obtaining the consent of
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`all the participants in the conversation. RCW 9.73.030(1)(a) and (b). “This statute is considered
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`one of the most restrictive in the nation.” State v. Townsend, 147 Wn.2d 666, 672 (2002).
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`Defendants do not dispute that the communications picked up by the Alexa devices were
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`“private” or that they were recorded and transmitted. Rather, it argues that registered users of an
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`Alexa device expressly consented to the recording and retention of the communications and that
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`both registered and unregistered users impliedly consented to the recording under Washington
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`1. Registered Users
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`During the registration process, users are asked to sign in and to provide a mobile phone
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`number. Both screens notify the user that by continuing, he or she agrees to Amazon’s
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`5 This last factor does not apply to users of an Alexa device who did not register or otherwise
`agree to Amazon’s Conditions of Use, and defendants did not seek a determination that Washington law
`applies to the claims of unregistered users. The Court therefore declines to conduct a choice-of-law
`analysis with regards to the wiretap claims of unregistered users.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 12
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`

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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 13 of 28
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`Conditions of Use and Privacy Notice, which are made available via hyperlink. Dkt. # 59 at
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`¶¶ 95 and 100.6 The user is then presented with the following Terms of Use:
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`Welcome to Alexa!
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`Alexa is a cloud-based voice service. Amazon processes and retains audio,
`interactions, and other data in the cloud to provide and improve our services.
`Learn how Alexa is designed to protect your privacy. . . . By tapping “Continue,”
`you agree to Amazon’s Conditions of Use and all the terms found here.
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`Dkt. # 59 at ¶ 100 (underlined phrases are hyperlinks). Throughout the setup process users are
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`reminded that by proceeding they agree to Amazon’s conditions and terms of use. Id. According
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`to plaintiffs, those documents represented “that users ‘control Alexa with [their] voice’ and that
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`6 Although the FAQs, Terms of Use, and Privacy Notice submitted by Amazon can be
`considered in the context of this Motion to Dismiss, the Court finds them irrelevant to the issues
`presented. Amazon provides a version of the FAQs that was apparently downloaded on December 15,
`2021, approximately six months after these consolidated actions were filed. Amazon asserts that it is the
`version of the FAQs that “appeared on Amazon’s website at the time that counsel for Plaintiffs last
`visited the FAQs” (Dkt. # 64 at 2), but it is unclear why counsel’s review is relevant. There is no
`indication that this version of the FAQs is the one that was available to the public at the time plaintiffs
`registered their Alexa devices or even at the time they filed their complaints. Amazon apparently offers
`a full version of the FAQs in an effort to show that registered users consented to the recording of their
`communications with an Alexa device and/or that Amazon fully and accurately represented their
`product. But a version of the FAQs that post-dates plaintiffs’ registration of their devices cannot serve
`those purposes.
`With regards to the Terms of Use and Privacy Notice, the versions presented for consideration
`were also printed in mid-December. The Terms of Use state that they had been updated as recently as
`September 2021 (after the First Amended Consolidated Complaint was filed). Amazon represents that
`these documents were in effect “at the time of the Amended Complaint” (Dkt. # 64 at 2), but at least
`with regards to the Terms of Use, that appears not to be the case. Again, without the versions of the
`Terms of Use and Privacy Notice that were presented to users at the time of registration, it is impossible
`to ascertain what terms and conditions were accepted and whether Amazon’s disclosures were adequate
`and accurate. Plaintiffs specifically allege that Amazon materially changed the way it described the
`workings of an Alexa device in its published materials. See Dkt. # 59 at ¶¶ 88 and 93.
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 13
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`

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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 14 of 28
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`interactions with Alexa were ‘stream[ed] . . . to the cloud” and were used to ‘respond to [a
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`user’s] requests’ and ‘improve [Alexa’s] services.’” Dkt. # 59 at ¶ 52 (alterations in original).
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`The version of the Privacy Notice attached as Exhibit B to the First Amended Consolidated
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`Complaint discloses that defendants “receive and store any information [users] provide in
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`relation to Amazon Services” and use user’s voice inputs “to respond to [the user’s] requests,
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`provide the requested service . . . , and improve [Amazon’s] services.” Dkt. # 59 at 101-02.7
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`Amazon further disclosed that “‘[o]n some occasions’ [Alexa] will accidentally record without a
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`wake word, analogizing it to ‘when a person walking down the street turns their head when they
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`hear what sounds like their name,’” an event called a “false wake.” Dkt. # 59 at ¶ 87 (alteration
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`added). In response to the question “Is Alexa recording all my conversations,” Amazon answers
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`“No,” further stating that “No audio is stored or sent to the cloud unless the device detects the
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`wake word (or Alexa is activated by pressing a button).” Dkt. # 59 at ¶ 103. 8
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`7 At oral argument, plaintiffs asserted that because defendants have not produced a copy of the
`terms and conditions that were in place when each plaintiff registered their Alexa device, it would be
`improper to dismiss any claims based on the missing disclosures. But plaintiffs chose to attach specific
`versions of the disclosures to their complaint, making them part of the operative pleading. For purposes
`of this motion to dismiss, the Court will consider the First Amended Consolidated Complaint as a whole,
`including its attachments. If discovery reveals versions of the terms and conditions that vary materially
`from those attached to the complaint, they may move for reconsideration based on the new evidence.
`8 If Amazon could show that the FAQs, Terms of Use, and Privacy Notice it submitted for
`consideration were from (or were materially unchanged from) the relevant time period, there are a
`number of other representations that impact the analysis regarding the scope of a registered user’s
`consent. In particular, the “terms” that are accessible via a hyperlink describe a user’s interactions with
`Alexa as follows:
`You control Alexa with your voice. Alexa records and sends audio to the cloud when you
`interact with Alexa. 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. Learn more about Alexa, including how
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`ORDER GRANTING IN PART
`DEFENDANTS’ MOTION TO DISMISS - 14
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`

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`Case 2:21-cv-00750-RSL Document 91 Filed 05/06/22 Page 15 of 28
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`Plaintiff argues that accepting the above terms and conditions of use does not constitute
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`“consent” under RCW 9.73.030 because (a) Amazon did not obtain agreement/consent each and
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`every time a recording was made and (b) Amazon never announced that it would record private
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`conversations in the absence of a wake word. The primary issue is whether registered users
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`consented to the recording of their communications with Alexa.
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`If [they] did the recording was not unlawful. That is so because . . . it is not
`unlawful to record a communication on a device where the ‘consent of all the
`participants in the communication” has been obtained. RCW 9.73.030(1)(a). A
`party is deemed to have consented to a communication being recorded when
`another party has announced in an effective manner that the conversation would be
`recorded. RCW 9.73.030(3). In addition, a communicating party will be deemed to
`have consented to having his or her communication recorded when the party
`knows that the messages will be recorded. See In re Marriage of Farr, 87 Wn.
`App. 177, 184 (1997), in which the Court of Appeals held that a party had
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`to delete voice recordings associated with your account and manage our use of those
`voice recordings.
`Dkt. # 64-2 at 3 (underlined phrase is a hyperlink). The “Learn more” hyperlink takes the user to
`Amazon’s FAQs, which cover topics such as “How are my voice recordings used?” and “How do my
`voice recordings and text transcripts improve Alexa?” In answer to those questions, defendants reveal
`that Alexa uses voice recordings “and other information, including from third-party services, to answer
`your questions, fulfill your requests, and improve your experience and our services” (Dkt. # 64-1 at 5)
`and “to train our speech recognition and natural language understanding systems,” which sometimes
`involves having humans review samples of requests in an effort to help Alexa be more responsive in the
`future (Dkt. # 64-1 at 5-6). The FAQs also disclose that Alexa devices “stream audio to the cloud if the
`wake word is detected (or Alexa is activated by pressing a button)” and that when Alexa detects a wake
`word “a visual or audible indicator will signal it is recording audio to stream to the cloud.” Dkt. # 64-1
`at 3-4. Users are warned that “[i]n some cases, your Alexa-enabled device might interpret another word
`or sound as the wake word.” Dkt. # 64-1 at 3. Users can review the voice recordings associated with
`their account and have a number of options for deleting them, including choosing not to save any voice
`recordings, in which case “we will automatically delete your voice recordings after we process your
`requests and automatically delete all of those voice recordings currently in your Voice History as well.”
`Dkt. # 64-1 at 4.
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`ORDER GRANT