Privacy and eDiscovery Rights Collide on Home Smart Devices

BYOD, E-Discovery, Privacy 0 December 28, 2016 280 Aaron Taylor

The peace and quiet of holiday vacation seemed to provide the perfect setting for a bit of rumination on ethics in the world of eDiscovery; I was all set to babble away, when a very interesting news item diverted my attention.  As anyone who has read the few blog entries I have posted so far will know, I feel that the explosion of messaging/texting apps with the privacy ramifications they generate will be one of the big issues in 2017 eDiscovery conversations and litigation.  The following story would seem to point in that direction, and is an indication of how quickly issues of this type jump to the forefront.

According to a news article in today’s (December 28) newspaper The Guardian and based on an item in the tech news site The Information regarding a murder that took place in 2015, police investigators have requested that Amazon turn over recordings captured by the murder suspect’s Echo device.  Amazon has refused to do so, although the article does not state their reasons; one could suppose server proprietorship or privacy based on contract could be at issue, among other reasons.

One would assume that investigators are not requesting this information for the “heck” of it; in fact, they did confiscate the device and manage to retrieve some data, which may indicate there is reason to suspect more relevant info may be contained in the device.  This of course is a criminal case, not a civil issue such as we in the eDiscovery world normally deal with.  But the ramifications are very similar, and message I see for eDiscovery participants is simple but vital:  As more and more “home smart devices” proliferate alongside all the new messaging apps, communications tools and multitude of other similar devices, eDiscovery ‘participants’ must keep pace.  You must be aware of logical sources for data to reside, and the unusual sources.  And you must be prepared for the push-back for access requests that is inevitable from service providers and data storage providers; just acquiring a subpoena is going to require more sophisticated arguments, based on sound reasoning that can combat the standard and expected privacy arguments and newer “data ownership” or “possession, custody and control” positions.

Incidentally, the “unusual sources” I mentioned is highlighted at the end of the Guardian article, where investigators realized they could obtain potentially relevant information from, of all places, the “smart” water heater in the suspect’s home; that data showed a highly unusual amount of water being used at the time of the murder; investigators speculate the suspect used a water hose to wash away blood on the patio.  Pretty clever bit of “awareness”, it seems.

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