• Connie Martin

IoT? “Things” With Potentially Valuable Data – on the Internet?

Why would a trial consultant be writing about the Internet of Things (IoT)?

By 2025, it is forecasted that there will be in excess of 64 billion mobile devices worldwide. Far more devices than people. So, one cannot afford to ignore the potential contributions data from these interconnected devices may lend to the adjudication of matters worldwide. Not to mention the contribution of social media’s explosive growth. Facebook alone, in ten years, went from 500 million views monthly to over 2 billion. LinkedIn went from 100 million to 645 million. YouTube alone went from 2 billion views monthly to 2 billion views daily. Snapchat went from zero in 2011 to 203 million snaps daily. One must give due consideration to these sources of potentially valuable, relevant information.

An example of how data collected from “things” might form a story: say you’re going on a business trip. Alexa checks the weather for you. You set an alert on your smart phone to pick up your dry cleaning on the way to the airport. You make your hotel reservation, selecting the room you want and through an app, you obtain the digital key to be used upon check-in, bypassing hotel registration. Driving to the airport you use your GPS and locate a long-term parking spot through the smart park app. Use TSA pre-check on your smartphone. Enter the airline frequent flyer lounge through your barcoded digital passcode. Order a cocktail through the app. Change seats upgrading to available first class through your app. After takeoff, access your VPN through your wireless connection and review business documents, uploading or synchronizing them through the cloud. Uber from the airport to the hotel. Bluetooth key used to access your hotel room. Dinner ordered through Uber Eats, delivered to your room. Throughout your trip, you’ve been leaving “evidence” of your whereabouts and your activities. While approximately 14 devices or apps have been used during this business trip, imagine the power of proof should all this data be pulled together through forensic collection and authenticated for admissibility.

So, why would a trial consultant be writing about the Internet of Things (IoT)?

Well, because the IoT poses authentication challenges when trying to present evidence in trial. And because the IoT is an absolute treasure trove of information. And because it touches nearly every single thing we see and do today. It affects how we get up in the morning. It affects how we get to work. It affects how we monitor our health. It affects how we socialize. It affects quite literally every facet of our lives. And it provides a plethora of data to all kinds of people and places we may not even be aware of…as well as to other machines that affect decision making across the many sectors of our economy.

Let me elaborate just a moment…because there is a reason trial lawyers need to understand the IoT and how it influences life today.

What is a “thing?” It can be a person with a heart monitor implant. It could be a cow with a chip in its ear that transmits data about its health. It could be the car you are driving. It can even be the air pressure sensors on the tires of the car you are driving.

Why do we have “things” that transmit information? Because organizations and corporations want to know how their products are put into use daily. Because manufacturers want to deliver more relevant customer service. Because companies want to have as much data as they can to facilitate decision-making. And because interconnected machines and the data they generate could eliminate huge expenses in waste across industries with devices that share information with one another.

Why do we, as legal professionals, care about “things” that transmit information? Because it is a new realm of discovery. A heart monitor implant can measure every movement a body makes. If someone’s heart fails, what were they doing at the time of the failure? On your cell phone, there is a GPS. It knows, without even turning an app on, where you are and how long you were there. It knows how fast you were driving to get there because it measures the time and distance between Point A and Point B. Many vehicles have onboard GPS as well…all doing the same things. How many times have there been accidents without eyewitnesses? But a FitBit, Smart Watch, an onboard GPS system or a cell phone can be an eyewitness in a sense.

Technically, each device is connected to a system of interrelated computing devices, mechanical and digital machines and other objects and each object is given a unique identifier along with the ability to transmit data over the network of interrelated computing devices. These objects collect, send and act on data acquired from their environments. Some devices communicate with other related devices and act on the information they obtain from one another. Most of the time, these objects connect without human intervention, although humans usually set them up, instruct them and access their data.

Few written decisions specifically address the use of IoT data in litigation. Those that do offer some guidance on how the data type fits into the larger body of law concerning electronically stored information (ESI). Attorneys considering how to use or handle IoT data in litigation must think creatively and use this body of law as their guide. This requires counsel to understand:

  • The types of cases where IoT data may be relevant.

  • How and to what extent parties and non-parties should preserve IoT data.

  • The various methods for, and issues raised by, collecting and requesting IoT data.

Types of cases that increasingly involve IoT devices and their data include:

  • Data breach cases,

  • Consumer fraud class actions,

  • Patent litigation,

  • Personal injury cases,

  • Matrimonial disputes and defamation cases.

How can a trial lawyer leverage the data being collected by these things? And how does one go about ensuring the admissibility should the need arise? In Part II of this blog, we will delve more deeply into leveraging the power of this potentially valuable data.

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