Closing The Loop

It was a dark and stormy night, and, somewhere, a murder was being committed -- or maybe it was an arson, or a car heist. Either way, crime has reared its ugly head and someone’s working to figure out who done it.

But when it comes to solving crime, investigators aren’t just looking for smoking guns these days. They’re looking for the smoking device, whether it be Amazon’s Echo speakers, Fitbit fitness trackers, or a data-logging pacemaker. Smart devices and the Internet of Things are increasingly becoming the focal points of many criminal investigations. IoT data is reshaping civil litigation as well, though some practitioners and judges worry that it could swamp the discovery system in unprecedented of levels of ESI.


Solving Crimes With Fitbits and More

The Internet of Things is the ever-increasing universe of web-connected devices. Over eight billion such “things” are expected to make up the IoT this year, according to research by Gartner, Inc.  That's a growth of over 30 percent since last year alone. By 2020, Gartner predicts, there will be over 20 billion IoT devices.

Some of these are familiar consumer products: digital assistants and speakers like Google Home and Amazon Echo, “smart home” devices like the Nest thermostats and web-connected security monitoring systems, Fitbits, cell phones, Apple watches and the like. But many more are less obvious: electronic sensors in utility grids, wireless-enabled medical devices, and IoT-connected cars.

Those devices are “more and more important to criminal investigations” these days, according to a recent article by Amanda Ciccatelli in Inside Counsel. Ciccatelli points to one case out of Connecticut, where a dead woman’s Fitbit data was used to charge her husband for her murder:

After over a year of investigations, the Hartford police charged Richard Dabate with his wife’s murder, tampering with physical evidence, and making false statements to the police after her Fitbit showed she was still walking around an hour after he claimed she was murdered by an intruder.

That’s not the first time Fitbit has taken center stage in a criminal investigation, either. The wearable fitness tracker, which monitors things like steps, heart rate, and distance traveled, was used to disprove a woman’s rape allegations in 2015. In that case, the woman had claimed she was attacked while sleeping, though her Fitbit showed she had been awake and walking around the whole night.

Fitbit isn’t the only IoT device capable of helping solve crimes, either. A man in Middletown, Ohio, was charged with arson in February after his home went up in flames. Ross Compton claimed that he packed some bags and escaped through a window as his home began to smolder. But police were doubtful that Compton could accomplish such a feat, given his medical condition, for which he has an artificial heart implant with an external pump and an electronic pacemaker. They subpoenaed data from Compton’s medical devices, using information on his heart rate, pacer demand, and cardiac rhythms to help determine that Compton had set the fire himself.  Call it the case of the tell-tale pacemaker.

Then there is the highly publicized case of the Alexa murder. After Victor Collins was found dead in a Bentonville, Arkansas, hot tub in November, 2015, police began investigating the homeowner, James Bates. As part of their investigation, they obtained a search warrant for data from the suspect’s Amazon Echo, the voice-activated smart speaker that responds to the name “Alexa.” Data from Alexa, it was thought, could show who had been up and interacting with the device when Collins died. Amazon originally moved to quash the warrant, citing privacy and First Amendment concerns, until Bates agreed to voluntarily hand over the recordings.


The IoT Is Changing Civil Discovery as Well

Of course, just because IoT devices are providing evidence in criminal investigations, doesn’t mean that such evidence will be admissible in court. Ciccatelli spoke to Megan A. Benevento, an attorney at Joseph Greenwald & Laake, who reminds us that, ”Just as with many of our modern scientific evidentiary milestones, from DNA evidence, to ballistics, to handwriting exemplars, the evidence will likely need to meet the reliability standards of Daubert v. Merrell Dow Pharmaceuticals to be admissible.”

“Though Fitbits are very popular, the prosecution will need to lay the foundation for this evidence—that the victim and no one else was wearing the Fitbit on the day in question; that the Fitbit accurately detected her steps and to what degree of accuracy; and that Fitbit’s maintenance of such records was properly preserved,” Benevento says of the Connecticut murder.

IoT data isn’t just creeping into criminal investigations, either. It’s already making an impact in civil suits.  One of Fitbit’s earlier forays into the courtroom was in a personal injury suit, where attorneys used Fitbit data to show just how drastically an accident had reduced a party’s physical abilities. And that’s just the tip of the iceberg.

When it comes to the IoT and litigation, a sea change could be ahead for civil litigators. The IoT has ushered in the “third wave” of eDiscovery, according to Antigone Peyton, chair of the intellectual property & technology law group at Protorae Law PLLC.

“We now have all these disparate computing centers with sensors that are collecting and creating lots of data about us, but they’re not part of our traditional enterprise model,” she explained in a recent interview with Logikcull.

The proliferation of IoT data creates “a whole new set of challenges for in-house counsel, outside counsel and eDiscovery companies because right now there’s no single protocol for these systems, these sensors talking or storing data or providing export functionality. It’s really the Wild West in that area.”

“Like with traditional enterprise data systems, we’re going to have to figure out systems and technologies to help us wrangle in all these IoT devices and the data they collect, in a manner that makes it cost-efficient and effective for us to collect, review and analyze that information.”


Are Courts Ready for Our IoT-Dominated Future? Probably Not.

Courts, too, are likely to struggle with the increase in IoT data, at least initially. In the criminal sphere, a report by the RAND Corporation recently warned that IoT technologies raised serious questions about due process.

One member of the RAND’s research panel noted that “there are often insufficient resources available to the defense to ensure that massive amounts of data can be fully reviewed and interpreted before trial.” Sound familiar?

Judges, too, seem concerned that a seemingly insurmountable flood of IoT data could overtake our judicial system. In interviews with Logikcull, judge after judge has expressed concern over how the growth in data will impact the discovery process.

We know there is a lot of controversy now about collecting data from personal devices of employees or even the company-enabled devices that employees get,” Judge Shira A. Scheindlin, formerly of the U.S. District Court for the Southern District of New York, told Logikcull in May. “There is more and more data, more privacy concerns, collections concerns, possession, custody, and control concerns.”

Her colleague, Magistrate Judge James C. Francis, echoed those concerns just a few weeks later. The growth in IoT data could disadvantage attorneys whose practices have not traditionally involved broad, electronic discovery, he warned. “This means that evidence will become relevant in cases where electronic evidence has never been relevant before, i.e. matrimonial cases, personal injury cases, where counsel aren't as sophisticated about the technology,” Judge Francis explained. “So, as more practitioners become involved in these cases, more of them will have to come up to speed.”

Magistrate Judge Andrew A. Peck, another eDiscovery judge from the S.D.N.Y., reminds us that IoT data raises a host of complicated issues for courts and attorneys to sort through:

Is there relevant information in those devices? Is the information actually in the device or is it in the company headquarters’ servers? How do you get it? What is kept? How long is it kept? How do you preserve it if you want to preserve it? 

"We’re in the infancy of the IoT and other technologies," Judge Peck says. "That is going to still be a problem for years and years to come."

But as the IoT changes litigation and discovery, Judge Scheindlin at least views the data growth as something technology can help manage. While data growth could make discovery more difficult in the short term, she explains, “as technology improves, collection, search and review should become less expensive” eventually make it possible to handle vast amounts of data “quicker and cheaper.”

This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.

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