The practice of law has changed substantially with the advent of computers, the Internet, and the “Information Age.” In many ways, these changes in the legal landscape are not surprising, as they roughly parallel those in the personal and commercial worlds. Much of the technology that has made its way into widespread use has focused on improving and streamlining existing methods. Though we certainly interact now in ways that we could not have 30 years ago, this has largely been within a scheme of roughly incremental changes – the word processor can act as a much more efficient typewriter, and hard drives can act as a very large file cabinet (or library). Court filings, collaboration, and record keeping, among many other tasks, have been streamlined; previously inaccessible sources of information are available even to those with the smallest budget; young law students may seem “dependent” on online services for their research, but they, in turn, don’t shudder instinctively at hearing the name “Shepard.” However, there is a deeper level of change occurring in virtually every area of commercial and academic pursuit. Some of the literally unprecedented advancement in data gathering, storage, and analysis is moving from behind the scenes into the forefront, and the potential pitfalls faced by the legal system in accommodating this already pose a risk of becoming a significant problem.
Legislation and judicial interpretation, of course, continually develop to meet new challenges and to integrate new ideas, cultural norms, and situations. Lawmakers can intentionally be ambiguous in the terms of a statute, or they can reference tests such as “reasonable person” or “contemporary community standards” to avoid specifying a n exact rule. Further, courts can apply “reason and experience” in comparing a new situation to law and precedent. Through much of our legal history, these concessions have enabled practitioners to operate with the knowledge that, should a trial be necessary, a reasonable fact finder could mirror the decision making process of the parties. However, many novel forms of analysis and inference are now being applied in the real world – processes which are neither amenable to interpretation based on a hypothetical person’s view, nor subsumed clearly within the variations in meaning of a word that one could find in a dictionary or in legislative history.
As an example, consider the formulation of Federal Rule of Evidence 401. The basic rule is about as simple as it could be – evidence should be let in if it has “any tendency” to increase or decrease the likelihood of a material fact being true. Limitations are subject to outside considerations – potential for prejudice, the interests of time, and various exceptions and modifications throughout the Rules, for instance. In contrast, the gathering and use of information in business and academia has essentially undergone a paradigm shift. Entire fields – from quantitative finance, to enterprise resource planning, to behavioral marketing, to customer relations management – have turned to the collection and analysis of data over the wise decision of the experienced business person.
This ingenuity in collecting and using data has, in fact, become an essential element of many major businesses. Google, for instance, can offer many of its services for free use, due in large part to its scrupulous collection of every bit of data possible about its users. Such data collection allows for profitable advertising, which in turn allows for more data gathering, and so on. Pieces of information that once seemed useless because of their specificity can now be aggregated with many similar data points to provide accurate information about an individual. Similarly, pieces of information that were formerly innocuous – a person’s first pet’s name, for instance – can now be combined with other seemingly benign, readily available information to provide the key to unlocking an entire identity.
The law currently affects the use of personal, private, creative, and other data in many ways. Ownership of data or compilations of data can be covered under copyright law, as well as by the social and business norms of a given community. Privacy concerns have received attention in the media as well, and provide a good example of the complexities involved. In a given instance of data collection, the same activities may expose a party to liability under a number of different legal theories. Data collection can constitute an invasion of privacy in civil tort, or it could run afoul of statutory proscriptions or constitutional limits. But data gathering or exchange on the internet is often governed by contractual terms as well. Traditional analysis, often based on a standard such as “reasonableness,” can apply similarly to interpretation of various criminal, civil, or administrative issues. However, the relatively open and opportunistic developmental process available in the information age has allowed knowledge to be applied in ways that the current legal system may not be capable of modeling. In light of the ever-increasing availability of information, now may be our best opportunity to reevaluate how the law approaches reasoning, knowledge, and information.
In short, modern technology is allowing society to gather and use more data than ever before, and important decisions are now made based on information and inferences that no person could hope to comprehend. We are now living in a world where the smallest bits of information can transform existing anonymous or incomplete data into a legally recognized profile, record, or report. What used to be fully anonymous now lies somewhere between “anonymous for practical purposes” and “readily attributable.” What does this mean for the legal system? Can we refine the definitions of terms like “personally identifiable,” “reasonable,” or even “information” itself, or should these terms be interpreted on an entirely new foundation?
At this point, it is not clear what form the answer will take. Statutes, rules, regulations, and judicial decisions could all contribute to a comprehensive solution. Depending on the issue and setting, each of these might have a distinct effect. Further, each might represent a different balance between privacy and efficiency, or a different attribution of duties to maintain privacy. On an individual level, as well, attorneys and business practitioners will need to look beyond traditional boundaries to integrate these new considerations into their work. In upcoming articles, I will discuss some examples to illustrate the significance of specific statutes, and how they may be particularly affected by the principles by which the system chooses to treat data, as well as some considerations specific to particular fields or roles in the legal community.