No Privacy – the Brave New World of Social Media, Technology, and the Law

There’s no question that technology is changing our lives. Driverless cars, facial recognition, and medical breakthroughs are making the world a vastly different place than it was even 10 years ago. But how is technology changing the world of law? More to the point, what is the impact of technological developments on lawsuits, on the courts, and on the way that lawyers and clients alike argue and provide their points?

Those were the questions raised at a continuing legal education seminar I attended recently on the topic of getting social media evidence into–or keeping it out of–the courtroom.

It’s an important topic, not only because we as a society are living more and more of our lives through social media, but also because social media is, as a whole, the most visible and pervasive effect of the rapid technological changes we are living.

What did I learn? Five takeaways:

  1. Watch what you say and do online.
    Actually, just watch what you say and do!  We live in a world where we are constantly being videotaped and recorded.  While this can be a good thing, it is also dangerous—everyone has a bad day, a time when they say things they don’t mean and later regret. It’s a lot harder to take them back when you posted them on Facebook.
  2. The Court is watching, too.
    Going forward, video and recordings are going to dominate contested trials and hearings.  American courts have always disfavored hearsay (statements recounted by a third party, like, “I heard Bob tell Jill that Jane did it.”), but video and audio recordings of private conversations are changing the importance courts give to things said by people who aren’t actually testifying in court. Our rules were designed for a time when you couldn’t take pictures from miles away or secretly record private conversations. Today, that’s not only possible, it’s commonplace. The courts are catching up.
  1. Keep up with technology.
    There is no excuse not to keep up with technology. I know that can be challenging, but if we don’t know how information is being stored and used, how can we access the evidence we need to prove our points? One important example: time and date stamps on text messages, which can be used, to show that someone was reading a text message when he hit another car. Whether you’re suing a careless driver or defending against an accusation of negligence, knowing how to access time and date stamps is critical.
  2. Human observation is becoming less and less important.
    Here’s a scary thought–we are approaching a world of “trial by machine.” Here’s what I mean: so much evidence now is coming from computers and algorithms, like those that calculate average driving speed based on the time elapsed between taking a ticket and paying the toll. If it’s too fast, can authorities send you a speeding ticket? Cite you for reckless driving? Can the courts use that information to establish negligence? We’re entering a time where human observation is needed less and less.
  3. Technology is here to stay.
    Good and bad, technology and technological developments are here to stay. It does no good to long for days when we could get away from the screen, ignore emails and phone calls, even write more letters that we send in the mail. We live in a world where that is no longer practical. Technology is advancing rapidly, and we must accept it. More importantly, we must adapt.
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