Ediscovery Black Mirror
Understanding how our greatest innovations are creating legal challenges now and in the future
When you watch the news today or read a great legal periodical like EDRM or Legaltech News, it is hard not to think that we have veered a bit into the realm of science fiction. You might even think that we have entered an episode of the cult classic television show Black Mirror, the dystopian science fiction series that highlights a “twisted, high-tech near-future where humanity’s greatest innovations and darkest instincts collide.”
Surprisingly, the viral series has mirrored or even predicted real life — and there have been some surprising legal ramifications that even the show’s slightly twisted creators had not envisioned. (Look no further than the program’s ingenious season 6 posters to wonder where real life ends and the fiction begins.)
“Arkangel”- Internet of Bodies Gone Wrong
The second episode of season four focused on the lengths a parent would go to in order to keep their child safe, via an implantable device called “Arkangel” which allows concerned parents to monitor their child’s position, health, and emotional state through a tablet. After initially deactivating the system, the mother in this episode decides to reactivate Arkangel to stem her daughter’s rebellious teenage antics, going so far as to have the system block certain things from the teenager’s sight and consciousness. Ultimately, as is so often the case with this series, the technology takes a dark turn and ultimately results in the teen completely spiralling out of control.
As the internet of bodies continues to evolve, this sort of tech is less and less in the realm of sci-fi. Jiobit, for example, is a wearable technology designed to attach to a child, pet, or adult’s clothing to monitor geolocation. While not Jiobit is not as invasive as Arkangel, some corporations have recently made headlines for implanting microchips in their employees. In fact, Dangerous Things, one of the larger human microchip manufacturers has sold more than 200,000 chips since its 2013 founding and even carries a hair-raising package of multiple implantable chips called the The Cyborg Transformation Kit.
For legal practitioners, it makes sense to watch the development of this industry from a privacy stand point as well as a potential source of ESI. Jiobit and other materials with geolocation have been frequently sought as evidence in litigation and both the child trackers and employer-sponsored or forced microchipping has raised serious concerns about legality and privacy.
“Crocodile” – Self-driving cars gone rogue
In this episode, a few not-quite-innocent bystanders bear witness to a self-driving pizza delivery truck hitting and killing a pedestrian. The episode follows the twists and turns that result from this futuristic catastrophe, with a predictably bleak conclusion. The thing is, this seemingly futuristic dystopian autonomous pizza delivery deathmobile is far from sci-fi. Organizations like Tesla are at the forefront of developing and proliferating self-driving vehicles and as recently as 2018, Pizza Hut announced a prototype for autonomous pizza delivery trucks and Domino’s followed suit announcing a similar effort in 2019.
From personal injury and wrongful death to straight up product liability and IP theft, autonomous driving vehicles from Tesla to Volvo to Uber face a rocky litigation landscape. The onboard systems, GPS, and other varied computer and web-enabled systems on the car may provide a wealth of discoverable information as the vehicles become more commonplace and practitioners should be prepared to include it in their ESI scoping. For example, in the autonomous Uber death of Elaine Herzberg in 2018, the investigation included data from the car systems as well as dashcam video.
Car ESI may include any combination of of video, car onboard computer data (showing duration of acceleration, when brakes were applied, whether someone was in the driver’s seat or their hands were on the wheel, whether a door was open, and when impact occurred), and ESI from other devices such as a tablet or a driver’s Netflix account, or SMS activity on the driver’s phone.
“Rachel, Jack and Ashley Too” – AI-enabled sentient toys & Miley Cirus
This episode boasts the star power of pop singer Miley Cyrus to paint a dark picture of sentient AI in children’s toys. In this story, the pop star falls into a coma and a nefarious aunt downloads her actual consciousness into one of the toys, much to the chagrin of the trapped superstar. While we are most certainly miles away from the human mind being replicated in captive AI in a teddy bear, smart toys are posing unique ethical and legal questions.
As technology has evolved, so have children’s toys — from the animatronic talking Teddy Ruxpin of my childhood to Furbies to CloudPets, internet-enabled teddy bears produced by Spiral Toys. The problem is that security and data privacy are increasingly exposed to risk with these toys. And legal practitioners should take note.
While the makers of Teddy Ruxpin mainly had to worry about patent infringement in the ‘80s, modern day internet of toys manufacturers face threats from displeased parents, nefarious actors, and hackers. The breach of a single IoT device, CloudPets, exposed 800,000 customer credentials and over two million child and parent messages. These smart toys may contain sensors, microphones, cameras, data storage components, and other multimedia capabilities – including speech recognition and GPS options all of which may provide a wealth of both risk and potentially digital evidence.
In this episode, Lacey, a social girl living in a social world finds her life spiralling into a dystopian nightmare when her social rating dips due to an unfortunate interaction. This sets a series of events into motion that culminate in job loss, friendships evaporating and ultimately jail time.
Taken to the extreme, the premise of “Nosedive” is being explicitly replicated with Chinia’s recently announced social credit score, where citizens are enrolled into a social credit system that takes into account everything from littering to social media posts or hard crime in a ranking system that dictates freedom of movement, job eligibility, and freedom. But even in the United States, there are less explicit ways social media is coming back to bite people in a big way in the courts.
“The Waldo Moment” – Social media and an election, ‘nuff said
Can you imagine a reality where an angry, blue, bear voiced by an out-of-work comic becomes the leader of the free world through social media dominance, memes and a scathing Twitter feed? Perhaps this premise seemed more dystopian future back in 2013 when the episode aired, but following the 2016 and 2020 U.S. elections there can be no doubt that in American elections, social media is king.
After the 2016 election, it was clear that social media wielded extensive power in swaying voters and battle lines were drawn leading up to the 2020 election across all social platforms. As we speak, Dominion voting has issued preservation notices to Facebook and other social media platforms relating to potentially defaming posts or tweets while on the other end of the spectrum a series of lawsuits have been filed relating to censorship of various social media platforms. While we are still a far cry from animated world leaders, the power of social media in swaying voters cannot be denied.
Black Mirror IRL
WHile we have yet to fully dive into the dystopian realm of sci-fi that this series operates in, it is important for legal practitioners to understand that with each cutting-edge innovation, there are a series of security and privacy risks as well as a potential wealth of discoverable information. The law is often the best last guard against descending to the dark reality this series so often envisions.