For many years, litigators have relied on the probative value of document metadata to define gross relevancy, pinpoint the who what and when of essential facts and shape ESI request before during and after 26(f) conferences. More recently, our legal community has employed artificial intelligence to analyze document metadata and complex word associations (word vectors) and predict what is important and relevant to the resolution of our clients' disputes. It doesn’t matter what you call our new document and metadata analysis tools; Artificial intelligence (AI), Predictive coding or TAR 2.0, the results are clear. New technologies allow litigators to deliver more effective, efficient and inexpensive dispute resolution. Document metadata and AI has moved us 1 step closer to the prime directive of civil procedure, Rule #1, Just, Speedy and Inexpensive client services.
Why then has our legal community not pounced on the opportunity to exploit “people” metadata – the currency that has built Google, Facebook and some of the largest Market caps in the world? The answer can most certainly be found in the skillful contracting practices of VCs, private equity firms and the Institutional investment community’s voracious desire to protect the accumulation of wealth. Welcome to the age of Surveillance Capitalism, a dark new economic logic that should either be contained by legislators or exploited by the savviest and most effective litigators.
Surveillance capitalism emerged just after the turn of the century when Google decided to boost revenues by using its exclusive access to what was, until then, primarily ignored data logs – a type of ESI that can be described as the digital exhaust leftover from user’s online search and browsing activity. Google analyzed the data for predictive patterns that could match ads and users, much like E-discovery predictive coding algorithms match highly relevant and probative documents with attorney decisions. When Google went public in 2004, the investment community would learn that on the strength of these new operations, Google advertising revenues increased by over 3000%! Stock valuations and investor wealth accumulation followed suit, and a new and powerful form of capitalizing companies with less cash was born. Image how attractive financial leverage without debt would be for your family if you could collateralize your personal information. Now consider how much more attractive it would be to an investor leveraging YOUR personal information without paying you a fee. Google had found a game-changing, zero-cost asset that could be diverted from its original objective of service improvement towards a genuine commercial exchange.
The new business model soon migrated to Facebook, where the default model for capital accumulation was perfected in Silicon Valley. The model is now embraced by every startup, app and content provider across a wide range of sectors including insurance, retail, healthcare, finance, entertainment, education and more. Despite most consumers intuitive understanding that there can be no free lunch, and our legislators best efforts to protect consumer privacy, the pace and wealth created by surveillance capitalism continues to grow exponentially. Unlike our health care privacy and HIPPA laws, consumer privacy protection can be waived by the consumer. Our finest contract drafters deliver corporate clients who click through EULA’s to contractually release our personal behavior data to corporations in exchange for “free apps”. Do you know anyone that reads a click through app agreement? I don’t.
Mark Zuckerberg is rumored to have called his customers dumb [idiots] for giving away all their valuable personal information. Perhaps his customers are naive, but his brilliant contract attorneys and their consent presentation process have made many surveillance capitalists rich without breaking US law. Whether or not that rumor is true, last January, Roger McNamee a former advisor to Facebook and Zuckerberg criticized the CEO and Facebook for its relentless use of user data with increasingly illicit and destructive methods. “To feed its AI engine, Facebook gathered data anywhere it could. Before long, Facebook was spying on everyone, including people who do not use Facebook.” In his quote, we can see McNamee alluding to the more dangerous, and less regulated, aftermarket of trading, selling or using personally identifiable information in the B to B environment. The US lags in personal privacy protections most probably because of the enormous power of surveillance capitalism and its positive effect on our economy.
In some ways, the consumer privacy laws have been toothless in ways that promote economic growth and avoid obstructing our US discovery process. HIPPA laws place the burden of privacy protection on the data processor. Consumers cannot be easily bilked into waiving their rights in exchange for medical services. Anyone that has ever had to redact personal health care information for disclosure productions knows how hard and expensive that can be. The EU’s GDPR statues have caused costly havoc on our US discovery and disclosure requirements, creating untenable situations that pit US fact discovery against EU national laws. We have learned to ensure that Digital WarRoom abides by sub-processor rules and cannot behave or be described as a data processor or data controller without placing the entire company (and our existing customers) at risk. Herein lies the thesis of this article. If personal behavior data is less protected in the US and has undeniable and enormous value to venture capitalist and private equity firms, why would it not have value to litigators?
As a discovery specialist, I loathe the GDPR -- it makes our jobs harder and imposes more cost on our customers. However, as I conducted research for this blog, I have come to understand and accept the value of these European initiatives. Our professional community should acknowledge and prepare for US laws that align with the GDPR in the next decade or less.
Ethical issues aside, people metadata clearly has tremendous financial value. The legal community must ask itself, does it have similar probative value and how can we preserve, subpoena and use aggregated personal information to resolve our customers' disputes. Just because some large company has your clients data doesn’t mean attorneys have a legal right to subpoena. Your clients can download a limited amount of personal data from EACH app or subscription. Even though Facebook has added outside data to your client’s profile, only SOME data submitted by your client is available for download. Facebook and Google attorneys will argue (i) burden, (ii) specificity and (iii) Do it yourself (DIY) without ever disclosing the full extent of information that has been accumulated and stored. Recent history has shown that Facebook will provide user account information in response to a subpoena. However, they're going to fight any attempt to produce any data in the account (i.e., wall postings, messages, photos, etc.). Supposedly, this is because of the Stored Communications Act, 18 U.S.C. §2701. Perhaps our best course of action is to force a ruling on this Act.
Digital WarRoom and its parent Gallivan, Gallivan & Omelia LLC has been delivering EDiscovery services and software since 2002 when we spun out of KL Gates (then Preston Gates). My experience in eDiscovey, including social media preservation, has been shaped by engaging and assisting attorneys with many thousands of matters and following articles and case law, notably those from Zubalake. Many of my observations on surveillance capitalism were influenced by Shoshana Zuboff who recently published the book “The Age of Surveillance Capitalism: The fight for the future at the new frontier of power" (2019). If this piece was of interest to you, I highly recommend reading more of both Zubalake and Zuboff.
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