The Internet of Things – A Tangled Web of Evidentiary Issues The Internet of Things – A Tangled Web of Evidentiary Issues

The Internet of Things – A Tangled Web of Evidentiary Issues

Google Home, Amazon Echo, Fitbit—they’re the quintessential “must have” pieces of new technology. They record our fitness data, spout the weather forecast, and even order takeout. These virtual family members, ready at a moment’s notice with their encyclopedic knowledge and their helpfulness, have become necessary gadgets in a world increasingly filled with them.

But can these devices, so simple and fun on the surface, raise more questions than answers when their data is used in the courtroom? What about privacy? What about privilege? What about the rules of evidence? And what happens when all of these questions collide during the course of a lawsuit or criminal prosecution, potentially undermining the business models of companies both big and small?

In recent months, news stories have highlighted the increasingly prominent role electronic devices like Fitbit, Amazon Echo, and Google Home—part of what has become known as the Internet of Things (IoT)—are playing in litigation and courtrooms across the country. 

In April of this year, police in Connecticut charged a man with the murder of his wife after her Fitbit data and other electronic evidence, including computer forensics and the timestamps from the wife’s Facebook posts, eviscerated the story he told the police. According to his statement, he came home after getting an alert from his alarm company and confronted an armed intruder who ultimately shot his wife. Yet, according to the electronic evidence, there was no home alarm sounding at the time he claimed, and the wife’s Fitbit showed her up and moving nearly an hour after her husband claimed she was killed by the intruder.[1]   

In another case, Fitbit data provided exculpatory evidence. In a 2016 rape case in Pennsylvania, the victim claimed she had been in bed asleep when an unidentified intruder came into her home and raped her. Her Fitbit data, however, showed she was not asleep at the time of the alleged assault but was instead awake and walking around. Prosecutors ultimately dismissed the case.[2] 

Devices like Google Home and Amazon Echo have also played central roles in criminal investigations. In 2016, for example, officials in Arkansas served a search warrant on Amazon seeking access to audio that may have been recorded on a suspect’s Amazon Echo device.[3] Amazon initially resisted the demands, which also implicated the issue of when and what exactly Echo (or “Alexa”) records. While a court ultimately never had to rule on the issue in the Arkansas case, it is inevitable, given the continued popularity of these devices, that similar issues will arise in future cases.  

These in-home devices also raise larger questions about whether, under the right circumstances, your handy electronic assistant could become a tool for law enforcement or even attorneys in civil litigation. Could, for example, law enforcement seek a search warrant (or attorneys issue a subpoena) to ascertain the substance of conversations individual homeowners thought were private (and not being recorded), thus turning the digital assistant into what is essentially a bugging device? Whether and to what extent communications or other data transmitted on these devices can be used in court is unexplored territory at this point. What is clear is the data could provide investigative leads in both civil and criminal cases, so consumers and companies should be prepared for prosecutors, civil attorneys, and investigators to try to obtain it.

Echo and Home also can and do log their owners’ search history. According to Amazon, once Echo detects the wake word, it starts streaming audio to the cloud where the data is kept until such time as the customer deletes it.[4] This data could provide a powerful tool to evaluate a suspect’s alibi or a witness’s credibility. 

Businesses—particularly those that manufacture, service, or communicate with IoT devices—should be mindful of these potential issues when developing their subpoena compliance protocols. If the viability of a company’s technology is likely to become an issue in the underlying case—a case in which the company itself is not a party—then the company needs to endeavor to understand the case for which records are being sought. 

Additionally, as the use of evidence related to technology becomes more common, parties will inevitably begin to attack it as potentially unreliable in an effort to clear their clients from civil liability or criminal culpability. What if, for example, the prosecutors in Pennsylvania had sought to challenge the reliability of the victim’s Fitbit data instead of accepting it at face value and dismissing the case? The very viability and functionality of the technology will become the focus of trials in cases where the actual developer of the technology is not even a party and is not even aware that its technology itself is essentially on trial.

Companies who receive subpoenas seeking data generated by their IoT products would also be well-served to understand precisely why the data is being requested and to monitor how such data is being used (or challenged) in the underlying litigation. 

Finally, consumers themselves should be aware of the potential uses of the technology they choose to bring into their homes. Echo and Home are about more than the weather, live streaming music, or reciting the news. They are also powerful tools both for their owners and, potentially, for lawyers and law enforcement.

Indeed, the advent of technology like Echo and Home threatens to complicate modern day litigation and related evidentiary issues. For example, what happens if one of these devices is recording during a supposedly private conversation between a husband and wife? Or between a lawyer and her client? Does the presence of the device and its recording technology potentially break any privilege claim—either spousal or attorney/client—that might otherwise be asserted? And, lest one assume this is just idle speculation, there have already been instances where these technologies started listening even when their owners had not meant them to be.[5] 

As technology becomes more and more integrated into our lives, it also threatens to change the frequency and nature of trials themselves. Will the availability of “incontrovertible data,” or at least theoretically “incontrovertible data,” make summary judgment more likely in civil cases and plea agreements even more likely in criminal ones? 

Eye witness testimony may also become less important as juries are presented electronic and technological evidence, including data from third parties like Amazon, Apple, and Google. While some may argue electronic data is more reliable than the recollection of fallible, human witnesses, for companies whose bottom lines are dependent on the sale and reliability of these technologies, this evolution presents substantial risk. 
Ultimately, it is clear the legal landscape is changing and electronic devices are driving the evolution. It is equally clear attorneys need to be ready to advise clients on the implications of certain technological advances and should be well-versed in issues related to the Internet of Things and data privacy and security. 

George Gasper is a partner in Ice Miller’s Business Litigation group and is a member of the Firm’s Internet of Things group. George can be contacted at George.gasper@icemiller.com.

Stephanie Courter is an attorney in Ice Miller’s Business Litigation group and focuses her practice on white collar defense and investigations.  Stephanie can be contacted at Stephanie.courter@icemiller.com.

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