• November 24, 2014

Cvr_sidefront_largeFor a long time now, commercial airplanes have been the most dedicated autobiographers on earth. They obsessively record every mood swing, their petty issues with wind speed, engine function, cockpit chit-chat, and so on…

(We call the airplane’s diaries “black boxes” but, of course, that would hardly be convenient when rummaging through the wreckage at crash sites.)

All of us with smart phones are catching up to the airlines. And if you have a “fitness tracking” device, there’s that too. We’re packing “flight recorders.” If you’re a dataphobe/technophobe, this is worrisome. If you’re a dataphile/technophile, it’s all good (and getting better every nanosecond).

But the fact is that probably none of us knows how this will play out. But play out it will. It has changed and will continue to change the practice of law, the rules of evidence, and trials.

Kate Crawford recently wrote a piece in The Atlantic about the use of “Fitbit activity data” in a trial. I recommend you read the whole article. It is not long. She concludes:

[T]he Fitbit case may be just one step in a much bigger shift toward a data­ driven regime of ‘truth.’ Prioritizing data—irregular, unreliable data—over human reporting, means putting power in the hands of an algorithm. These systems are imperfect—just as human judgments can be—and it will be increasingly important for people to be able to see behind the curtain rather than accept device data as irrefutable courtroom evidence. In the meantime, users should think of wearables as partial witnesses, ones that carry their own affordances and biases.

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