New Sources of Discoverable Evidence

Intelligent Personal Assistants

Intelligent personal assistants such as Amazon Alexa (paired with Echo or Dot hardware) and Google Assistant (paired with Google Home hardware) are voice-recognition systems capable of voice interaction, music playback, making to-do lists, setting alarms, streaming podcasts, playing audiobooks, and providing weather, traffic and other real-time information. To accomplish these tasks, the intelligent assistant records an audio clip of the user's voice. Those files are sent to a server to process the audio request and formulate a response. The recorded clips are associated with the user's account, and details are saved in the cloud for user reference.

So how many of your conversations at home are recorded by the virtual assistant? Manufacturers say that the only spoken commands they understand on their own are “wake words” or “activation phrases,” things like “Alexa” or “OK Google.” The virtual assistant is activated when the device hears someone say that phrase. The background conversations are not recorded, but anything said after the activation phrase is recorded. However, a number of Echo users have reported incidents of the device starting to talk without being prompted by the wake word “Alexa” — perhaps misinterpreting other words spoken as wake words.

In a now-famous Arkansas case, James Bates was accused of murdering a coworker in a hot tub in 2015. Because Bates' Echo was streaming music on the night of the alleged murder, the police believe that it may have been activated and that it recorded conversations. They sought release of the data to support the murder investigation. Amazon initially refused to provide Bates' account data, based on privacy concerns. Bates later agreed to share his data with law enforcement, and the case continues. The outcome is sure to have important implications for privacy rights and discovery fights in a wide range of cases, both civil and criminal.

Personal Fitness Trackers

Fitness trackers like Fitbit, Garmin and the Apple Watch are examples of passive data generation — where the user's own actions and behaviors are captured in digital form. Most are worn like a wristwatch or a clip on clothing or a shoe. The device uses an accelerometer to sense movement, and most new models include an optical sensor to detect heart rate. Fitness trackers provide detailed information about frequency, duration, intensity, and patterns of movement to determine your steps taken, distance traveled, calories burned, and sleep quality. The device data is typically stored in a cloud application.

Wearable devices could in effect serve as a black box for the human body. It's easy to imagine a situation in which parties in a personal injury or criminal case might benefit from data extracted from a health tracker and the associated web application. Where was the defendant at the time of the event? Was the person asleep or awake?

In a case in Canada, attorneys used a Fitbit as evidence in a personal injury lawsuit related to an auto accident. The woman, who had worked as an active athlete and trainer prior to the accident, used her fitness tracker to defend her request for compensation by demonstrating that her physical activity was seriously reduced as a result of the injuries she sustained.

Senior Trackers

Senior trackers are emerging as a new category of IoT wearables. Approximately 12 million older Americans live alone, and new IoT gadgets help track medical care, home safety and communications for older family members. Using Wi-Fi or a cellular network, the device allows medical professionals to monitor patients remotely. A series of sensors can be attached to objects around the home — think medications, refrigerator, smart water bottle, etc. The tracker can remind the senior to eat, take medication or exercise, and the gadget counts steps. Should the person fall down, sensors tell the tracker and can alert a relative or an emergency service. Many have a GPS to help track the person should he or she become lost. Data on these devices, or stored in their respective cloud applications, has implications for accidents, insurance issues, criminal or civil suits.

We conclude this discussion in next month's issue with a look at automotive “black boxes,” and drones.

*****
Michael Ciaramitaro is Senior Vice President of Forensic Discovery Services at FRONTEO, a global technology and services company specializing in Big Data, Artificial Intelligence, Information Governance, Managed Review, and Consulting for the eDiscovery market. This article also appeared in Law Technology News Online, an ALM sibling publication of this newsletter.

Personal assistants, fitness trackers, and automotive black boxes are among the devices whose data and metadata may have big impact in legal cases.

At the 2015 World Economic Forum, Google chairman Eric Schmidt discussed the Internet of Things, (IoT), saying, “The Internet will disappear. There will be so many IP addresses, so many devices, sensors, things that you are wearing, things that you are interacting with, that you won't even sense it.”

This increasingly connected world promises consumers will live better informed, healthier, safer, and more exciting lives. But there are privacy risks and e-discovery implications as well. IoT devices leave a trail of data and metadata that may have big impact in legal cases. Here are a few examples that illustrate the trend.

Intelligent Personal Assistants

Intelligent personal assistants such as Amazon Alexa (paired with Echo or Dot hardware) and Google Assistant (paired with Google Home hardware) are voice-recognition systems capable of voice interaction, music playback, making to-do lists, setting alarms, streaming podcasts, playing audiobooks, and providing weather, traffic and other real-time information. To accomplish these tasks, the intelligent assistant records an audio clip of the user's voice. Those files are sent to a server to process the audio request and formulate a response. The recorded clips are associated with the user's account, and details are saved in the cloud for user reference.

So how many of your conversations at home are recorded by the virtual assistant? Manufacturers say that the only spoken commands they understand on their own are “wake words” or “activation phrases,” things like “Alexa” or “OK Google.” The virtual assistant is activated when the device hears someone say that phrase. The background conversations are not recorded, but anything said after the activation phrase is recorded. However, a number of Echo users have reported incidents of the device starting to talk without being prompted by the wake word “Alexa” — perhaps misinterpreting other words spoken as wake words.

In a now-famous Arkansas case, James Bates was accused of murdering a coworker in a hot tub in 2015. Because Bates' Echo was streaming music on the night of the alleged murder, the police believe that it may have been activated and that it recorded conversations. They sought release of the data to support the murder investigation. Amazon initially refused to provide Bates' account data, based on privacy concerns. Bates later agreed to share his data with law enforcement, and the case continues. The outcome is sure to have important implications for privacy rights and discovery fights in a wide range of cases, both civil and criminal.

Personal Fitness Trackers

Fitness trackers like Fitbit, Garmin and the Apple Watch are examples of passive data generation — where the user's own actions and behaviors are captured in digital form. Most are worn like a wristwatch or a clip on clothing or a shoe. The device uses an accelerometer to sense movement, and most new models include an optical sensor to detect heart rate. Fitness trackers provide detailed information about frequency, duration, intensity, and patterns of movement to determine your steps taken, distance traveled, calories burned, and sleep quality. The device data is typically stored in a cloud application.

Wearable devices could in effect serve as a black box for the human body. It's easy to imagine a situation in which parties in a personal injury or criminal case might benefit from data extracted from a health tracker and the associated web application. Where was the defendant at the time of the event? Was the person asleep or awake?

In a case in Canada, attorneys used a Fitbit as evidence in a personal injury lawsuit related to an auto accident. The woman, who had worked as an active athlete and trainer prior to the accident, used her fitness tracker to defend her request for compensation by demonstrating that her physical activity was seriously reduced as a result of the injuries she sustained.

Senior Trackers

Senior trackers are emerging as a new category of IoT wearables. Approximately 12 million older Americans live alone, and new IoT gadgets help track medical care, home safety and communications for older family members. Using Wi-Fi or a cellular network, the device allows medical professionals to monitor patients remotely. A series of sensors can be attached to objects around the home — think medications, refrigerator, smart water bottle, etc. The tracker can remind the senior to eat, take medication or exercise, and the gadget counts steps. Should the person fall down, sensors tell the tracker and can alert a relative or an emergency service. Many have a GPS to help track the person should he or she become lost. Data on these devices, or stored in their respective cloud applications, has implications for accidents, insurance issues, criminal or civil suits.

We conclude this discussion in next month's issue with a look at automotive “black boxes,” and drones.

*****
Michael Ciaramitaro is Senior Vice President of Forensic Discovery Services at FRONTEO, a global technology and services company specializing in Big Data, Artificial Intelligence, Information Governance, Managed Review, and Consulting for the eDiscovery market. This article also appeared in Law Technology News Online, an ALM sibling publication of this newsletter.