The U.S. Supreme Court has declared that physical devices containing digital data are more significant to individual privacy than a purse, or the glove compartment of a car, and that police must get a warrant to search a cell phone. In doing so, the Court has articulated the distinction between objects and information — between atoms and bits.
It should soon follow that the distinction between atoms and bits applies to all evidence.
In civil litigation, paper and physical objects are the metaphorical cigarette pack that’s fair game for a warrantless search upon arrest. They’re limited by the physical space they require, and proximity to the parties. They derive their significance from their proximity.
When you ask for the digital evidence you’re asking for the bits. Bits are invisible, and widely dispersed, because they have the capacity for lightning-fast travel. They’re easily reproduced, stolen, hidden, and misrepresented. Their significance can be greatly distorted.
Rapid expansion is underway in the range of human activity involving bits rather than atoms. The so-called “internet of things” will produce exponentially more information related to every human life, and more incursions into personal privacy. What is the limit on eDiscovery when your mattress is equipped to send a signal to the coffee pot and the thermostat as soon as it detects that you’ve stirred in the morning?
It’s perfectly reasonable even now to assert that rounding up “any and all” digital evidence related to an event is impossible. The internet of things will make it more so.
Already, judges are pushing back against overly-broad eDiscovery, as unnecessary conflict and financial burdens arise from preservation orders demanding “any and all” information.
“Any and all” is a paper standard. Applying the same standard to electronic evidence results in botched litigation holds. The parties don’t produce enough, or they take too long, run up the tab, and distract the court from the purpose of the case. They’re either negligent, or they’re over the top.
Electronic discovery should resembles a law enforcement search warrant in its approach, except that it develops from a meeting of the minds, rather than a grab-whatever-is there mentality. It must describe with particularity what it seeks. To state the obvious, it’s more important than ever that parties clearly define the categories of information they’re seeking, and then negotiate limits within those categories.
Approaching the bits as if they were atoms is frustrating both sides, uneconomical, and ultimately impairs the substantive proceedings.
We will see what else develops now that privacy as a legal concept has been legitimized in anew.