Using “smart” devices are not so smart: a recap of the 2016 AALL Annual Conference and Meeting

Do you own a Fitbit?  For those who are unfamiliar, is a physical activity device that records your physical condition, how many miles you walked, your blood pressure and other personal stuff like that.

Now supposed you were in an accident suing for millions saying that you couldn’t work or get out of bed.  Imagine, then, if opposing counsel were to serve you with a subpoena demanding that you turn your Fitbit over for examination (to prove that you, are in fact, unable to move around).  Think opposing counsel would win?  This, among other issues were explored when I attended the 2016 AALL Annual Conference and Meeting held in Chicago July 15-19.

With the increase use of smart devices, what is not addressed is the fact that the data these smart devices collect can be used against the wearers in courts of law.  For instance, say you tell police that you were not at Market and Grand at 1:00PM.  The police pull up pictures you took with your “smart” phone, find a picture you took and discover, via the location feature embedded in every picture you take with your “smart” phone, that you were at Market and Grand at 1:00PM.  Subsequently, you are arrested for obstruction of justice (i.e. you lied to the police while they were conducting an investigation).  Oops.

This, of course, is problematic, if for no other reason than under the 5^th amendment, which gives you the right to not testify against yourself, can the prosecution use pictures you tool on your “smart” phone against you in court?  As it turns out, yes they can; but how dare your inanimate objects be used to testify against you, right?   Then there is the issue of the 6^th Amendment, which gives you the right to know and face your accusers.  How can you confront or even cross examine an electronic device?  I mean, I talk to myself all the time but imagine what the judge will do when you try to cross examine a smart device in court!?  They’ll throw you in a padded cell, for sure!

The bottom line to all this is while “smart” technology is great and fun and fun to use, it can also be used against you.  So, best to play safe and be sure you’re not doing something that your “smart” devices can be used to tattle on you.