October 23, 2021

Volume XI, Number 296

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October 21, 2021

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“I always feel like somebody’s watching me…” The Legalities of Smart Devices and Privacy

“Hey Alexa…”

It’s a simple phrase that makes us feel like we’re living in the future promised us by The Jetsons and Star Trek. Alexa, Siri, Google Assistant—all Artificial Intelligence (AI) designed to make our lives just a little easier. Need a recipe for beef brisket? Just ask Siri. What time is the movie going to start? Ask Alexa. Need some music for your dinner party? Google Assistant has you covered, just ask. But how are Alexa and Siri at your beck and call? The answer is they’re always listening. What does that mean for you? It means that every sound they hear is analyzed and indexed.

Data Privacy

Privacy is the next big frontier in eDiscovery. Data privacy laws are constantly evolving. The General Data Protection Regulation (GDPR) (effective May 25, 2018) is the European Union (EU) and European Economic Area (EEA) law that relates to data protection and privacy. It also applies to the transfer of personal data outside of the EU and EEA. (The University of Michigan has a great timeline of the history of privacy law.) Practically, your personal data is the most valuable asset you have.

Understanding existing and pending privacy legislation is important. Currently 3 states have passed legislation, including California; 9 states, including Pennsylvania, have active bills; and 15 states have introduced legislation that ultimately died or was postponed. At some point there could be federal legislation that governs privacy similar to GDPR.

Do these devices violate wiretapping laws? Unclear.

An issue worth exploring is whether these devices fall under the purview of wiretapping laws. In Hall-O’Neil v. Amazon, a class action case in the Western District of Washington, Plaintiffs allege that Alexa enabled devices collected and recorded confidential conversations with minors. Hall-O’Neil v. Amazon.com Inc. et al., 2:19CV00910. It is important to keep an eye on these and other similar cases to understand the privacy issues at play with these types of devices.

How Do We Handle Evolving Privacy Issues in the Legal World?

So, what does this mean for legal professionals? One thing to consider is attorney-client privilege issues. With the global pandemic requiring a major shift to working from home you should carefully consider the ramifications of having a virtual assistant in your home while you’re working on client matters—you may be violating attorney-client privilege. Out of an abundance of caution you probably want to unplug your virtual assistant before getting to work.

On the flip side, if someone has a virtual assistant and it was present during a key meeting or event you might want to investigate subpoenaing the recordings, which carries with it additional issues such as who owns the data related to virtual assistants, how long is the data retained, and how do you obtain it.  Law enforcement agencies have been subpoenaing virtual assistant data for years to obtain voice clips and time stamped logs of user activity in crime investigations.

What’s the Best Practice?

With so many questions and so few real legal precedents it’s best to proceed with caution with the use of these devices. It’s also very important, from an eDiscovery perspective, to make sure you’re aware of the potential for important data to be found on these devices during the discovery process.

Lynne Hewitt and Maryann Mahoney also authored this article. 

©2021 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 244
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About this Author

Gretchen E. Moore Litigation Attorney Strassburger McKenna
Shareholder

Gretchen E. Moore is a shareholder and Vice President at Strassburger McKenna Gutnick & Gefsky. She has been with the firm since 2004 and also serves as co-chair of the firm’s Litigation Practice Group. Ms. Moore’s practice focuses on commercial and civil litigation and municipal law with an emphasis on contracts, construction, fraud and breach of fiduciary duty.

Ms. Moore practices in state and federal courts, before administrative boards and in arbitration and mediation proceedings. She represents municipalities in land use, zoning,...

412-281-5423
Lydia A. Gorba Litigation Attorney SMGG Law
Associate

Lydia A. Gorba is an Associate Attorney with Strassburger McKenna Gutnick & Gefsky practicing primarily in civil litigation. Lydia has experience handling a variety of matters, including personal injury, premises liability, real estate litigation, and insurance defense.

Lydia believes that building a relationship with each and every client is the necessary foundation to handling any type of case. She values communication and will not leave you wondering about the status of your case.

Lydia began her legal career at...

412-281-5423
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