It’s often said that privacy is dead. Indeed, most of us don’t think much about privacy anymore as we opt for convenience. But recent events suggest that the loss of privacy can have dire implications for all of us. Particularly since the government and others have the ability to know everything, and I mean everything about us.

 

I have written before about the potential ability of law enforcement, prosecutors, and others to obtain highly personal information about you. And about what you are doing. Indeed a recent unconfirmed report out of Nebraska suggests that that is precisely what is starting to happen.

 

According to a Lincoln, Nebraska news report and Forbes article, a teenager and her mother were recently arrested and charged with allegedly removing, concealing, and abandoning a dead human body and concealing the death of another person. The arrest occurred after the Norfolk Police Department received a tip claiming the teenager had miscarried in April at 23 weeks of pregnancy and secretly buried the fetus with her mother’s help. The 17 year old is being charged as an adult.

 

A week after the two were charged, the detective in charge of the case had the bright idea to get and serve a search warrant on Facebook. The warrant sought access to the mother’s and daughter’s accounts. While Facebook could have perhaps challenged the warrant, it instead turned over the direct messages (and presumably public posts) between the mother and the teenager.

 

The detective discovered messages that suggested the mother had obtained abortion pills for her daughter and gave her instructions on how to take them.

 

A month later, the prosecuting attorney added two more felonies to the charges against the mother based on the Facebook evidence for performing or attempting an abortion on a pregnancy at more than 20 weeks and performing an abortion as a non-licensed doctor.

 

It’s sad when a teenager is being charged with crimes like this. But what’s really scary now is where all this is leading.

 

Think about all the places private companies collect information about you. Amazon and Alexis know your conversations. Your cell phone provider knows where you are at all times. Your Nest doorbell knows everyone who comes to your door. Your web browser knows where you search on the web. Your car knows where you have been and keeps a record. Think about all the IoT devices you own, all of which are collecting data and providing it to a third party to do with it as they will.

 

A few weeks ago, on our LegalTech weekly journalist roundtable, we discussed the possibility that you could be stopped at the state lines and asked where you have been or where you are going. And why. But that may not be necessary: there are ample digital records showing that already. And the companies holding those records can’t necessarily be counted on to keep them private or even tell you when your information is being revealed.

 

 

I never do anything wrong, so why should I care

 

You say I never do anything wrong, so why should I care. What if your data was used say to question your right to vote? What if nongovernment entities could use your records to deny you health coverage or employment? Car insurance? A loan. (Donald Trump reportedly once said if you haven’t done anything wrong you don’t need the 5th Amendment protection against self-incrimination. Even he has apparently rethought that recently and sees some value in protection against government intrusion).

 

Far-fetched? Hardly. If Facebook (sorry, I mean Meta) will willy-nilly turn over information to the government, think what it might do with data that someone (like an insurance company) might pay for. And given the rate at which tech companies are acquiring other businesses, the ability for data to be shared among co-owned companies is real.

 

And this is not to mention the possibility of data breaches and the sale of purloined data that could be used for other purposes. And, of course, there is always the possibility that places you have been and things you have done online could be misconstrued. How many of us have clicked on something by mistake? But that mistake could now lead to an arrest warrant.

 

The book 1984 was set in a police state where the government knew everything the characters said and did. What we have is pretty close. We have turned over almost all our secrets to private companies who may be only too happy to share them with others and the government. And we did it without a whimper.

 

 

Big Brother is not only always watching, we don’t even understand that he is.

 

 

What’s even scarier: I’m pretty sure the Nebraska mother and daughter never thought that their Facebook direct messages between each other could be publicly revealed. We every day give away our secrets without really appreciating that we are also giving away our secrets. Big Brother is not only always watching, we don’t even understand that he is.

 

There is little real protection. The implications for privacy and the use of data for all sorts of purposes are real. Oh, and for those who still say, I live a spotless life, so I don’t care. I would ask you whether you would like to turn over your cell phone and all your emails to me to peruse and then report on. Is that ok?

 

Just ask Alex Jones.

 

Photo Attribution: Photo by mostafa meraji on Unsplash

 

There has been a noticeable trend in legal tech the past few years toward more AI, more machine learning and, perhaps as a result, more user friendly legal tech. More user friendly tech means more hands on tech usage by lawyers and legal professionals. Which is a good thing.

 

I just got back from 3 days at AALL (American Association of Law Librarians) 2022 conference where these trends—as well as others–were evident. (This was the first in-person conference for AALL in a couple of years). My fellow Legaltech Week panelist,  Zach Warren summarized the conference very well in his recent article. But here are my impressions.

 

First, for the most part, the conference seemed to be a back to normal event. Like Zach, I don’t know the exact attendance numbers. But session attendance was about what you would expect. The exhibit hall looked pretty much normal, and the vendor parties were well attended and lavish.

Continue Reading AALL2022: AI, Machine Learning, User Friendly Tech. And Next Generation LexisNexis+

The 2022 AALL Conference opened yesterday on a solid note of collaboration and cooperation.

 

The 2022 AALL Conference kicked off yesterday, July 16 in Denver. It’s the first time the groups have gotten together since 2019. Perhaps appropriately, the keynote speaker was Tani Cantil-Sakauye. Chief Justice Cantil-Sakauye is the first woman Chief of the California Supreme Court and an engaging and charismatic speaker.

 

The Chief Justice talked a lot about access to justice and the way courts are viewed in today’s society society. She also talked about how to deal with the new realities growing out of the pandemic. But more than that, she talked about collaboration and consensus building, collegiality among those who disagree, and leadership. She struck the right and appropriate note for the Conference.

Continue Reading AALL 2022: It’s All About Good Manners

When it comes to diversity in the legal profession, we often focus on the federal judiciary, law firms, and in-house legal departments. But where most legal work gets done and lay people have the most contact with the law is in state courts. And the diversity scorecard in state courts often gets ignored. But the Brennan Center of Justice has, since 2019, focused on just this issue, at least for the highest courts in each state. The Center recently updated its State Supreme Court Diversity. The update results, unfortunately, were consistent with prior years and, in a word, are appalling.
The Study was based on data shared by Professor Greg Goelzhauser at Utah State University. It is based on detailed demographic and professional information from a number of sources. These sources include biographical statements, obituaries, newspaper articles, and listed membership in affinity organizations.

Continue Reading State Courts and Diversity: A Sad Picture

All too often, we think of the legal market, especially for law firms, as being composed of BigLaw or at least lawyers that bill by the hour.

 

The truth is, though, that today’s legal marketplace is composed of various segments. These segments have business models and goals that are so different that they might as well be thought of as separate types of businesses entirely.

 

The trend toward increase diversification and segmentation in legal was brought home to me in a couple of conversations this week. The first was with Kris Satunkas. Satunkas is the Director of Strategic Consulting for CounselLink.

Continue Reading The Legal Market: Continued Diversification and Segmentation

Lost in the acrimonious abortion debate in the wake of last week’s Supreme Court ruling are fundamental and downright scary questions. What does the brave new world of privacy? What privacy protections are there, or what should there be now that abortion is illegal in so many states? A brave new world that may terrify tech companies and ultimately all of us.

 

A recent report from Reuters entitled U.S. Tech Industry Frets About Handing Data to States Prosecuting Abortion sets out the issue. When you go online and search the web, there is a record created of your search history– and the sites to which you go. There is also geolocation data generated.

Continue Reading Privacy Just Took On a Whole New Meaning

I had an interesting discussion recently with Peter Baumann. Peter is the CEO and founder of data privacy and governance software provider ActiveNav. According to its website, ActiveNav, founded in 2008, helps “privacy and compliance teams quickly identify, inventory and map sensitive data.”

 

Peter’s present goal is to develop solutions that address what he calls the “elephant in the room .”That is businesses having and maintaining too much unstructured that they really shouldn’t.

Continue Reading Law Firms and Unstructured Data: A Disaster Waiting to Happen?

Several articles have recently discussed the claim by a Google computer scientist that a Google AI system was a sentient being. The scientist, Blake Lemoine, used his interview with the AI program to support his claim that the program appears to have consciousness. If you go by some of the interview responses, I got to wonder whether a lot of lawyers can be considered sentient.

 

For those who don’t know, sentient refers to the ability to perceive or feel things. The general thinking is that only humans are sentient and in the club. Animals (Dogs? Cats?) are not. Certainly, computers are not.

Continue Reading Are Lawyers Sentient?

At the risk of stating what perhaps should be obvious, lawyers valued for their abilities and insight are generally happier. They are certainly happier than those valued almost entirely on their production (i.e., billable hours). The latter group is by and large less healthy than the former. And in the long run, the happier lawyers are more–not less– productive than their unhappy, stressed out brethren.

 

Makes sense, right? Then why do so many law firms evaluate and compensate lawyers–especially associates–based on the billable hour yardstick? Maybe it’s because of a lack of empirical data demonstrating the advantages of the long-term view. If so (and as set out below, I am not convinced that that is the case), at least now there is data that confirms the obvious. Happier lawyers are more likely to be more productive over the long haul.

Continue Reading Lawyers Valued For Insight and Ability Are Happier. And More Productive

Data doesn’t lie. But sometimes, you have to ask it better questions to get anywhere meaningful.
 
 
In making criminal justice decisions, courts and prosecutors have tried to use data and algorithms to determine things like the risks to society a particular accused may pose. The concept is simple: look at the data and determine who is likely to commit another crime or flee before disposition. From this analysis, the theory goes, you can then determine if a particular accused is similar to the individuals the data says are likely to pose those risks.
 

Continue Reading Data Analytics: It’s All About The Question You Ask