Have you ever wondered whether there’s a dark side to all of this data collection and sharing (besides the problems associated with the ever-increasing data breaches)? The answer is—there is a dark side—that data can be use against you or someone else you know in a court of law.
Here’s a little background on the Internet of Things (IoT) and how it’s going to forever change the practice of law.
What is the Internet of Things
Maybe you’ve heard about the Internet of Things (IoT). It’s the network of physical objects (or “things”) that connect to the Internet and each other and have the ability to collect and exchange data.i It includes a variety of devices with sensors, vehicles, buildings, and other items that contain electronics, software, and sensors.
The basic premise behind IoT is that everyday objects can be turned into “smart” devices that operate better, are more efficient, and communicate with device users and other objects. These objects are programmed to communicate via apps, text messages, browsers, and other tools. They tend to communicate using embedded sensors and wired and wireless communication protocols and systems, including Wi-Fi, Bluetooth, and a variety of specialized IoT protocols.ii
Imagine a refrigerator that tells you when you need more milk,iii or a home thermostat that can be adjusted remotely using an app on your mobile device and which learns your behavior patterns relating to your home climate.iv Or a networked house that connects power outlets to sounds systems, TVs, smoke detectors, security cameras, coffee pots, and the home owner through a software app.v These homes and smart devices already exist,vi and more are coming online every day. Some industry experts estimate that there will be up to 50 billion connected devices by 2020.vii
The Impact of IoT on the Practice of Law
As the number of connected devices expands into new markets and interacts with, and collections information regarding, more areas of our lives, lawyers and litigants are beginning to realize that IoT data is discoverable, relevant, and useful evidence that can support their case. Litigators and clients should understand how IoT objects work, what information they collect, where it is stored, how long it is stored, and who is obliged to keep it safe. Only after we understand how the system works can we make strategic decisions about legal risks, e-discovery options and obligations, and the appropriate use of IoT data in the courts.
For example, when utilizing IoT data, lawyers and litigations should consider:
- Who will bear the burden of processing and sharing IoT data?
- How we will use IoT information as “witness” evidence?
- How will IoT data interact with our Sixth Amendment right to confront a witness that will provide evidence against the accused in a criminal prosecution?
- Did we ever imagine that the objects gathering information about us could be used against us, and how does this interact with our Fifth Amendment right against self-incrimination?
- Will judges and juries treat IoT data like forensic evidence and give it the same weight and credibility as scientific analysis or the results reported by an expert witness?
Looking Forward: Special Considerations When Using IoT as “Witness” Testimony
It will be particularly interesting to see what happens when a witness’s sensory experiences (sight, sound, taste, etc.) clash with the “experience” reported by their wearable device and how the fact finder reconciles these competing stories. For example, if a biker testifies that they were traveling down a hill towards an intersection at about 15 miles per hour, but their wearable device or Stravaviii app reports the speed down the slope at 25 (due to a complicated three-dimensional GPS reading and reporting algorithms), which “witness” will the jury credit more? Both systems for reporting experiences are fallible and fraught with errors. If litigators prioritize IoT data-driven evidence over eyewitness statements or expert analysis, then we must ensure that the algorithms used to analyze IoT data are understood and their imperfections are disclosed.
As one commentator noted, if we think of devices as partial witnesses, we must understand that they carry biases and have a worldview, based on their relationship with their environment.ix Despite this, there is a significant risk that IoT object information would carry more evidentiary weight than the owner’s own experience and point of view.
As with forensics results, there is a significant risk that judges and jurors will conclude that device data doesn’t lie or have an imperfect memory. Yet there is an interpretive activity lurking behind the scene. When wearable object data is collected and interpreted by analytics companies using proprietary algorithms, counsel, judges and juries will need to understand what’s happening under the hood, whether the results reported are reliable, and what evidentiary weight they should be given. Not unlike scientific researchers or forensic experts, wearable technologies collect data, interpret it, and reflect it in reports that provide information about the user activity and experience. The interpretive tools used to report IoT data are often highly subjective or an imperfect fit for a number of users because of their crude analysis methods or the individual’s health status and biology. This is but one area where possibilities are far ahead of the law on witness-style testimony from things connected the Internet.
If you are interested in learning more about IoT and its potential impacts on legal practice, including information regarding how IoT data is being used in court, I hope you’re going to be in Chicago this week for the 2019 ABA TechShow. The TechShow agenda can be found here, and I will be covering IoT issues for lawyers in a lively discussion with Bob Ambrogi during this exciting law and technology conference.