By Jim Calloway

There’s been quite a lot of technology-related news over the last several months. Some of it is directly related to the legal profession. Much of it is at least indirectly related to the legal profession. There have also been some interesting court rulings related to technology. Rather than featuring just a few items, I decided to do a roundup of many of these items with a few comments.

THE RIGHT TO BE FORGOTTEN

A European Union court, in a ruling that most Americans found perplexing at best, created (or recognized) a “right to be forgotten,” based on a Spanish citizen’s request to have Google remove accurate search results about him that he found objectionable. Now Google is processing many requests along this line from EU citizens.

Comment: One would assume that the First Amendment would prevent a similar result from occurring in this country. But some authoritarian nations now block large parts of the Internet from access by their citizens. It is just another reminder that the Internet is not the same for everyone. Lawyers should understand that if they are traveling in the EU, their version of Google is no longer the same as our Google.

CELL PHONE SEARCHES

In Riley v. California, the U.S. Supreme Court unanimously held that police may not search the cell phones of criminal suspects without a warrant. In the court’s syllabus, it was stated, “A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved.” It was also noted as a complicating factor that the data a user views on many modern cell phones may not be stored on the device itself so that the search might well extend beyond papers and effects in physical proximity of an arrestee.

Comment: The opinion was noteworthy both for its unanimity and its rather broad language. The concluding paragraph is worthwhile for all lawyers to read, even if they do not practice in the criminal law arena:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630.  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

This is one instance where advances in technology changed the substantive law. It was previously allowable to search an arrestee’s wallet or pockets, but cell phones contain much more information than the drafters of the Constitution could have contemplated. It seems unlikely that there will be many problems with law enforcement obtaining a warrant in appropriate cases. It also seems likely that “let me see your license, registration and unlock your phone for me” could have become quite common in roadside stops had the opinion gone in another direction.

SOLO CONFERENCE

The 2014 OBA Solo & Small Firm Conference was held June 19-21 at the Hard Rock Casino Resort in Catoosa.

Comment: As always, the OBA Solo & Small Firm Conference provided a mix of practice management, law office technology and substantive CLE offerings. One of our speakers was Illinois lawyer Bryan M. Sims who discussed the many ways that he used technology in his law practice, including remote access tools. There was quite a large group at the breakout session titled “Social Media, Internet and Email Evidence at Trial: Admissibility of Electronic Evidence,” taught by OBA Family Law Section Chair Shane Henry. It’s probably worth noting that by now most family lawyers have had to deal with Facebook in some way, and Facebook wasn’t even opened to the general public until September 2006.

FACEBOOK

Many were horrified at the revelation this year that Facebook had been running psychological tests on its users to gauge their reactions to stimuli and to generate negative emotions.

Comment: Many thought that had been the purpose of Facebook all along.

iPHONE NEWS

The Annual Apple Worldwide Developers Conference often generates big news. Your iPhone and iPad will get improvements this fall with iOS 8 upgrades to notifications, support for third-party keyboards, an upgrade to auto-correct called QuickType and a new health-tracking component called Health.

Comment: Perhaps the most significant items were the ones left unsaid. The company did not confirm that the iPhone 6 will be released this fall with larger redesigned form factor including 4.7-inch and 5.5-inch diagonal screens (that likely will be announced by the time you read this in print). And there was no announcement of an iWatch. The stock market did not like that omission.

ANDROID WEAR

Meanwhile the Android Wear platform has already given rise to two newly released Android “smart watches,” G Watch from LG and Gear Live from Samsung.

Comment: Do you think you will ever use wearable technology devices? The article at the endnote above is very positive on the Google Now parts of Android Wear. There have also been some less-than-glowing reviews, however. But this technology is still early in development. Wearable technology will certainly fall into common usage at some point. It will be simpler to answer the phone or see a brief text message on the face of your watch than to dig the phone out of a pocket or purse. There is already much discussion about a personal area network (PAN) related more to an individual instead of a location. Contrast this with the local area network (LAN) that most law offices now have.

In case you are assuming this doesn’t really relate to you, you should appreciate that wearable technology and a wireless PAN will record a huge amount of data about an individual’s location and actions. Just like mobile phone data, it will not be too long before lawyers have to deal with discovery of wearable technology information.

THE INTERNET OF THINGS

A Forbes Magazine feature in early July was titled “Here’s Why Retailers Are Betting Big On Internet Of Things.”

Comment: I am often asked to guess what the next big development is going to be. Most everyone who pays attention to such matters is focusing on this concept called “The Internet of Things.” This involves more devices, particularly household devices, connected to the Internet with instructions to take certain actions or give notices to the owners when certain conditions occur. Some of these ideas may seem a little silly right now, like the olfactory sensor in the refrigerator telling you when the eggs have gone bad. But some of us of a certain age can remember when things like buying your books online or using a credit or debit card at the gasoline pump seemed silly too.

It won’t be too long until controlling your door lock or the heating and air-conditioning unit with your smart phone seems about as routine as sliding a debit card through a gas pump. Some of these ideas may save energy as well, with the home keeping the temperature at one level when it is empty and changing the temperature when it notes that the occupant’s smart phones appear to be headed home.

At some point, that data too, will be sought by some lawyer to prove or disprove some very important fact.

MERGERS AND ACQUISITIONS

A lot of big technology companies that you have heard of bought technology companies that you have never heard of, paying millions or sometimes billions of dollars for the privilege.

Comment: My fearless prediction is that these investments will work out in some instances and will be failures in others.

THE FUTURE OF LAW PRACTICE

There have been several conferences this year about the future of law and disruption in the legal services delivery model.

Comment: GPSOLO magazine has posted its May/June 2014 issue online. The magazine theme is Law Practice 2020. If you aren’t able to attend a conference about the future of law, reading this magazine will give you a lot of information. Your attention in particular is directed to the cover story “How Technology Is Changing the Practice of Law” by Blair Janis. Lawyers who are interested in online marketing should also read “Innovative Marketing Tactics That Really Attract New Clients” by Terrie S. Wheeler. And, of course I have to note that I was asked to be a guest columnist for this issue’s GP Mentor column directed to new lawyers. The title of my column is “The Future Ain’t What It Used to Be.”

Oklahoma lawyers have an outstanding opportunity to hear noted author and futurist Richard Susskind discuss the future of law practice on Nov. 14 at the OBA Annual Meeting in Tulsa. Don’t miss this great opportunity to hear the leading international authority on this subject.

DRIVERLESS CARS

Google has convinced many that driverless cars will be a reality someday soon (by the way, the preferred term is now the much less threatening “self-driving cars”). Google co-founder Sergey Brin has gone public with his belief that self-driving cars will decrease the need for individual car ownership in the future.

Comment: The changes to society and the law created by the deployment of these vehicles would be profound. Imagine a society where many people no longer owned a car with its expenses for purchase, upkeep, repairs and insurance. When you needed a vehicle, you would just summon a rental with your phone. There would be no need to hunt for a parking place. For important occasions, you would reserve one in advance. Instead of dealing with the frustrations of driving and traffic jams, you could read, listen to music, nap or have conversations with your companions while the car drives.

Would some sort of no-fault system be developed to handle the damages if two self-driving cars collide or would those collisions essentially cease happening? Would auto manufacturers and dealers be imperiled if infrequent drivers began to compare the costs of automobile ownership with just summoning a self-driving vehicle as needed? What would happen to automobile insurance companies? This is potentially as big a change to society as the popularization of the Internet.

IN CLOSING

Let me end by noting that my blog, Jim Calloway’s Law Practice Tips, has a new web address, www.lawpracticetipsblog.com. The old web address will still work. You are reminded that you can visit the blog one time and subscribe to the email update service so that you can receive all of the blog posts by email after they are posted.

Mr. Calloway is OBA Management Assistance Program director. Need a quick answer to a tech problem or help resolving a management dilemma? Contact him at 405-416-7008, 800-522-8065 or jimc@okbar.org. It’s a free member benefit!

Originally published in the Oklahoma Bar Journal — August, 2014 — Vol. 85, No. 20