Business Week recently published an article about a Microsoft researcher, Gordon Bell, who walks around with a device called a SenseCam around his neck that snaps pictures every 20 seconds or so, along with a device that records audio conversations.  Click here for the article and here for a related article in TechCrunch.  In essence, the device records the daily events of Bell's life, which Bell can later play back and review.  These devices may soon become widely available in the market, perhaps as early as next year.  Presumably, video recording and integrated audio will arrive on future generations of these devices. 

In a book called Total Recall, Bell and coauthor Jim Gemmell contend that recording life events, what they call "lifelogging," using devices like this will become standard practice.  In fact, they make a prediction about legal proceedings to say that in the future, testimony about what a witness saw or heard will be considered less reliable than testimony in which data from a lifelogging device can corroborate the testimony. 

Since the establishment of the jury system, which has its roots in ancient Greece and England, eyewitness testimony has been a fundamental source of information by which a trier of fact (jury or judge) can decide a case in court.  The law of evidence has all kinds of nuances to account for the human fallibility of perception and memory.  Lifelogging devices, however, offer the promise of overcoming failing memories or limitations of perception.

From an eDiscovery perspective, lifelogging devices and associated storage (perhaps in the cloud) offer a possible bonanza of new relevant information that could corroborate, or impeach, the recollection of the person wearing the device.  Lawyers will need to start asking if witnesses have such devices, and if so, will want to see recordings of events at issue in their cases.  Likewise, wearers may have an obligation to preserve their logs when they can reasonably anticipate litigation concerning the events depicted in their logs. 

Nonetheless, these devices raise questions about the reliability of the devices and the possibility of tampering.  The law will need to account for the fact that the user may be able to alter the recorded video or sound, whether using the device itself or when the logged video/audio is stored off the device.  The law is just now beginning to grapple with the inherent malleability of digital evidence.  Lifelogging devices will trigger even keener scrutiny when recordings place property, reputations, and even life at stake in legal proceedings. 

Of course, trusted timestamping and PKI offer a technological solution to the issue of the integrity of recordings, although the average consumer may have no business reason for special integrity controls.  But perhaps there is a market for a device with these controls where integrity and chain of custody are important, such as for police officers on the beat.  It will be interesting to see how this market develops. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP