Welcoming 2016—or is it really 1984?

By Karen Federman Henry

When George Orwell published his novel “1984” in 1949, it presented many impossibilities of the future—computers and other artificial intelligence, Big Brother watching every person’s move, and all of the incredible trappings of science fiction stories that many of us enjoy as a break from reality. As the real 1984 approached, technology had not achieved the level imagined in the novel: Computers were huge and immovable; portable phones looked like bricks; and the internet was a newfangled system that few people used.

Fast-forward to 2016. Technology has become so portable that we are annoyed if it needs a plug (even if just to refresh the power supply). We access information instantly through smartphones, watches, Fitbits, and other mobile devices—no more lugging heavy laptops when you can use an application for almost everything. Cameras are used in many businesses and homes for security purposes (and checking on the nanny), and on the public streets for crime and traffic monitoring. We perform banking transactions and make purchases electronically, and law enforcement activities include dashboard and body cameras to capture the activities of officers as well as the members of the community with whom they interact.

Storing all of this information has become effortless—it sits in the cloud awaiting access from any location where there is a signal. And wireless systems abound everywhere we go.  Even the concept of artificial intelligence has become the new normal, with a variety of robotic options taking shape and altering our way of life. Robots defuse explosive devices and perform surgery; the limits keep moving beyond our imagination.

As so often happens, technology has moved at a greater speed than the laws and regulations that may need to govern it. This could pose a dilemma for the appellate courts when the challenging issues that arise from all of these new devices reach the courts before adequate laws are in place. Even with statutory guidance, there will remain an ongoing difficulty of reconciling the digital age with protection from unreasonable searches and seizures and the penumbra of privacy rights that exist under the Fourth Amendment and the Bill of Rights to the U.S. Constitution, respectively. These fundamental rights did not account for a world in which personal and private information can flow so freely from person to person, place to place, and even to satellites in outer space.

Everything from emails to health data to tax documents seems to find a way into a cloud storage space. Yet, many of the cloud storage companies make no promise that the data will not find its way into the wrong hands. And the very nature of the cloud is that someone else (and their employees) has access to your data and information.

Often, to ensure that data has not become corrupted, someone other than the person who placed it there must review it. These authorized or permitted views are complicated by the prospect of hacking or unauthorized employee use. Despite the risks, we continue to place data in the cloud—in the hands of multiple other people.

A question arises as to how to protect all of this electronic information. Aside from the concern about identity theft, how does ownership and possession change in an electronic world? If we voluntarily share our electronic data (medical information, bank accounts, video from cameras in our homes that are linked to security firms), does it alter our expectation of privacy regarding that information? While medical practitioners must comply with the dictates of HIPAA, the exercise program in which I might enter all sorts of data about my weight, sleep quality, and exercise does not have the same responsibility.

Stay tuned as issues trickle up to the appellate courts. We have already seen some questions about the foundation for admitting information from social media—how do you show that a post was made by the person the account belongs to? And that assumes the information is relevant.

Another issue may involve subpoenas issued to companies that house electronic information. Many software license agreements contain no assurance that a request for access to electronic information would be declined. This could create confusion about who owns electronic data once it is shared with others, particularly when a person believes there is a fiduciary relationship with the company housing the information. The question already is coming up with police body cameras and the videos captured and stored from those cameras. While many issues will find a resolution through existing legal principles, it will be interesting to see whether new laws or interpretations become necessary to address these “1984”-like concepts of electronic data and technology.

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