Legal Tech: Smart Speakers and E-Discovery

It's not our everyday conversations that really are the issue, though. The larger concern is the possibility that a user could accidentally trigger Alexa by saying a word that sounds similar to a command, which then means that entire interaction is recorded and becomes part of the device's history. For instance, Alexa could record a crime as it happens or pick up a conversation where sensitive material like trade secrets are discussed. Those aren't just theoretical either, as such events have already happened.

Targeted at Consumers

In general, devices like Alexa are intended for the consumer market and don't have many features that would make them truly useful tools for businesses. That said, Microsoft recently announced improvements for its Cortana smart speaker that will make it the first device of its type to be targeted at businesses. More will surely follow.

For now, though, the devices are primarily targeted squarely at the consumer marketplace, so using smart speakers in the office may not be very beneficial for most businesses. But such use could carry a certain amount of risk.

First, there's the risk of who might have access to any company data that finds its way into the smart speaker product. One need look no further than the recent news stories concerning humans employed by Amazon to listen to various anonymized Alexa recordings. Simply put, you don't really know who might listen to something Alexa records — intentionally or otherwise.

What's more, user agreements for consumer products generally don't protect such captured data as would be expected in enterprise products. For products targeted at businesses, the company that owns the product nearly always has unequivocal ownership of its data. For consumer devices, there is often less clarity. While saved data is usually still the property of the consumer, the device maker often stipulates that it has the right to access the data for various analysis or other purposes.

Finally, the mere existence of such devices can create unintended consequences and associated costs to the business, like having to include them in any legal, regulatory or other compliance process. Legally speaking, the actual medium where data is stored doesn't make a huge difference. Voice-activated smart speakers may be a new and different way of storing data, but for legal matters, that underlying data recorded by the device likely would be treated the same as paper documents or other kinds of electronic material.

During litigation or discovery, the biggest obstacle would be justifying the collection and analysis of data on a device based on its potential relevance. Any data contained on a company-owned device — even an employee's personal data — is usually discoverable if responsive to valid document requests. Information from personal devices used at a job are also often fair game too — although it would behoove an employer to apprise employees of that policy to avoid surprises down the road. On the other hand, a court likely would set a fairly high bar to justify the discovery of such data from an employee's home device.

A Recurring Problem

If you're feeling a little déjà vu, there's good reason. We've been through all this before — five to 10 years ago, in fact. That's when smartphones and tablets started appearing in the workplace. Back then, companies had the same general options they do now: They can ban their employees from using the devices in question; they can create policies outlining acceptable use; or they can ignore the problem entirely. Unfortunately, many corporations chose the last option, at least initially, and it wouldn't be surprising if many did so again.

Employers who are concerned about the use of voice-activated smart speakers might be best served by clamping down on their general use, at least initially. Certainly, in places where sensitive information is discussed — trading floors at financial institutions, for example — they should be prohibited outright. If you decide to allow the use of smart speakers, make sure you put usage policies and expectations in writing and regularly remind employees what they are, as well as what the ramifications are for disregarding them.

The aforementioned Microsoft Cortana aside, I do find it interesting that smart speakers haven't yet targeted the enterprise market. Devices that eventually do, though, will need to have built-in compliance and discovery functionalities to help companies meet the legal standards and regulations of their respective industries and legal proceedings generally.

Gmail underwent a similar metamorphosis. When Google first introduced the now-ubiquitous email service, it was clearly consumer-focused. However, when Google eventually introduced its cloud-based G-Suite to compete in the business marketplace against Microsoft Office, it included discovery capabilities so that information was saved appropriately and could be extracted if needed. When the next wave of digital assistants comes, we'll likely see enterprise-focused products that contain those kinds of necessary features.

Until then, it's going to be challenging for any business that has to include such a device in their legal proceedings or regulatory compliance programs, as the devices simply haven't been designed to meet such requirements. But that won't stop opposing parties from demanding their inclusion in those processes, just like with smartphones and tablets before them.

New Interactions with Information

To be clear, though, aside from the initial growing pains of any new market segment, there's no reason why digital assistants can't eventually become a standard piece of technology in businesses. Indeed, just like with the smartphone and other such devices, they will likely help increase efficiency and more. After all, they offer an often more efficient and effective way to access and interact with the ever-growing amount of information that we now have available.

When Apple introduced the iPhone in 2007, it changed the world by putting fully usable computers in our pockets. Digital assistants might have a very similar effect. Ten years from now, we could very well look at the technology that will be available to us then and wonder how we existed without it. And with that being the likely outcome, businesses might as well start adapting to the use of these new devices today, so they are ready to take full advantage when that time arrives.

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Brian Schrader, Esq., is President & CEO of BIA, a leader in reliable, innovative and cost-effective eDiscovery services. With early career experience in information management, computer technology and the law, Brian co-founded BIA in 2002 and has since developed the firm's reputation as an industry pioneer and a trusted partner for corporations and law firms around the world. He can be reached at [email protected].