As the COVID-19 pandemic continues to hamstring businesses across the State and country, employees are still adjusting to what is, at least for the short term, the new normal. With the New York closings of non-essential businesses (at least for on-site work), schools, restaurants and many other public gathering and meeting places, people are finding themselves spending almost all of their time at home. Non-essential businesses have been ordered to have their employees work from home to help stop the spread of the virus, as well as following mandated orders from the state government. As more people start working from home, the risk of leaking confidential information increases. Smart technology that responds to voice prompts, like Google Home or Amazon Echo, have made everyday life easier and more efficient, but have also brought on a wave of paranoia.
Businesses are warning their employees to be aware of what kinds of smart technology is being used in their home while working remotely. These devices are made to learn and recognize our voices, so saying certain words or phrases near them can trigger a recording to start. A recent ongoing study, conducted by students at Northeastern University and Imperial College London, found “the average rate of activations per device is between 1.5 and 1.9 times per day,” after they played Netflix for 24 hours near the voice-activated appliances. Since these devices listen for multiple seconds after their trigger is said, possibilities are endless regarding the content of discussions that can be picked up and tracked when owners are watching television, having conversations, utilizing dictation, talking on the phone or listening to music proximate to their favorite devices.
If you use smart technology in your home to play music, turn on your appliances, or for any other reason, be mindful of what you say around this new technology, consider changing its default listening settings, and take extra precautions when discussing sensitive information around it. It is a good idea to turn off or unplug any devices while talking about private client information at home. An even better idea is to not have any smart technology near an office or workspace. Another suggestion is to frequently clear any patient information that could be stored in a device’s “command” or “search” log.
These smart technologies have full transcription capabilities and are not limited in the content or language that they hear or maintain. This means that doctors who utilize patient file dictation, or CEOs who discuss business strategy, in the same office as a device may be unknowingly causing their most sensitive information to be reduced to writing and stored on a server out of their grasp.
In recent years, information recorded and stored on smart devices have been subpoenaed for use in litigation to prove time and place of an occurrence and to confirm an alleged injury. Who can and who must give over evidence from these types of “smart technologies” is a typical question in the age of the Internet, and creates confusion for consumers and companies holding consumer data, specifically about preservation of data for litigation. While individual consumers may be able to claim an “expectation of privacy” when using these gadgets in their homes, business entities are less protected. Federal Courts usually treat all data maintained within a business as discoverable, meaning even a smart device not used for work purposes, but kept in an office, could be subjected to search.
When using an Echo, or any smart technology capable of recording any sort of voice or activity data, be mindful of the contexts in which it could be used for litigation. When in doubt, do not discuss protected health information, or commercially sensitive information, in the same room as one of these devices, or if you do, confirm its settings are set so that nothing is recorded that you do not intend to record.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC
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