Predictive policing has been used to calculate and forecast future crimes. Yes, although it sounds quite futuristic, but it has been used by various private and public organizations. The City of Santa Cruz, California was one of the first state governments that tried to implement this technology in an effort to stop crime. Predictive policing works by using machine-learning algorithms to calculate the possibility of future crimes. It uses mathematics and data analytics to evaluate information and make systematic predictions. It can also use artificial intelligence technology to reach the results. However, after some time, its public officials stopped their efforts to prevent racial inequality. Predictive policing raises several legal issues that will be addressed in this article.

First, there could be a problem with negligent police activity. We know that, once access is granted to a database of private or confidential information, it is highly probable that someone will abuse it. In other words, an agent may use that information in the wrong way. The technology has not proven to be effective in the sense that crime can be predicted. So, the police officers may engage in activities that would constitute harassment instead of protecting the public. C.C.P. § 527.6 defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” So far, predictive policing’s technology has not been able to specify who, when, where, what, how, or why future crimes can take place. It has not been able to tell the specific location of the future crime. So, for these reasons, it could be abused that could lead to negligent policing activities.

Second, there could be a problem when the private or confidential information is used to violate someone’s privacy. Invasion of privacy is a cause of action where the plaintiff sues the defendant for violating his or her privacy rights. The elements for public disclosure of private facts are as follows: (1) defendant publicized a matter regarding the private life of the plaintiff; (2) the publicized matter would be highly offensive to a reasonable person; and (3) it is not of legitimate concern to the public. In addition, invasion of privacy may occur if there is an intrusion upon someone’s seclusion. The prima facie elements for this cause of action are: (1) defendant intruded into plaintiff’s private affairs, seclusion, or solitude; and (2) the intrusion was objectionable to a reasonable person.

The National Security Agency (“NSA”) along with other government agencies (e.g., FBI, CIA) have expanded their surveillance programs after several terrorist attacks took place on domestic soil. It is a known fact that the federal government is systematically tracking domestic and international calls of its citizens. The surveillance program does not end there but also expands to text messages, internet browsing, and emails.

There is information that indicates the President’s Surveillance Program (“The Program”) was designed to assess, evaluate, gather, and analyze a tremendous amount of information with or without subpoenas or warrants. The Program is intended to disrupt actual or potential terrorist attacks that could be instigated by known or unknown criminals. The government has setup a massive collaboration effort with major telecommunication companies to gather information that would usually not be subject to surveillance. The telecommunication service providers have given access to the NSA to install surveillance equipment (e.g., “fiber-optic splitter”) which makes an exact copy of the data that’s passing through their systems and sends it to the government. Also, other special equipment such as the “Narus Semantic Traffic Analyzer” has been installed on the telecommunication systems to conduct deep packet inspections. These analyzers are capable of assessing and sifting through large data segments (e.g., 10 gigabits) and internet traffic.

These pervasive surveillance programs were authorized by President Bush after September 11, 2001. There is real time access to internet traffic and telephone records that was not previously available for previous surveillance programs. Also, the electronic information is being gathered in real time and stored on secure databases.

The governments of many countries have initiated surveillance programs to protect national security. These programs were allegedly designed and instigated to fight against terrorism and other criminal activities. For example, the British Government has setup a similar program to the United States government’s PRISM  program which is called TEMPORA. The GCHQ, which stands for Government Communications Headquarters, is the British government’s spy agency that operates similar to the United States National Security Agency (“NSA”). There is information that confirms the GCHQ has placed data interceptors on fiber optic cables to analyze internet communications. There is also information that confirms approximately 10 gigabits of data per second (or 21 petabytes of data per day) is being reviewed per day by this spy agency. Its agents are charged with the task of storing all sorts of information – e.g., electronic information with correlating metadata – on computer servers for as long as thirty days. This spy agency uses a technique called Massive Volume Reduction (“MVR”) to conduct its analysis.

Government spy agencies share their intelligence with other nation’s agencies as part of a partnership program. In fact, several years ago, The Guardian publicized this massive information gathering after it was reported by Edward Snowden. It seems the GCHQ is operating under two principles: (1) Mastering the Internet; and (2) Global Telecoms Exploitation. These surveillance programs are meant to gather as much information as possible for evaluation and assessment. However, it seems these principles have not been opened up for public debate and are being carried out without warrants.

The government spy agencies are gathering phone records, email message content, social media communications, and other types of information in an effort to curtail criminal violations. Their targets may include the unsuspecting innocent and suspicious or guilty individuals. Therefore, there are two schools of thought here. First, the spy agencies should carry out their intelligence gathering to prevent another international tragedy such as 9/11. Second, the spy agencies should be subject to certain limitations and should be forced to obtain lawful warrants before conducting surveillance. On the other side, the government officials argue that this type of unprecedented wiretapping is necessary to properly safeguard the country from terrorists.

The United States government has implemented surveillance programs to promote national security. These programs are designed to gather and process electronic information that could arguably assist government agencies in their efforts to enhance national security. However, there is an argument being made that the federal government is using the resources of major communication service providers to obtain records of citizens without legal justification. In other words, the government is engaging in unlawful surveillance programs without probable cause.

What kind of programs have been implemented?

The National Security Agency (“NSA”) has been intercepting internet communications for several years without fully disclosing the nature and extent of its surveillance programs to the general public. It’s also collecting other types of communication records such as phone records and related electronic information. There is evidence that proves AT&T is cooperating with government surveillance programs. The evidence seems to indicate the telecommunication giant has installed fiberoptic splitters to copy and send information to the government. Experts have argued this kind of activity is beyond “wiretapping” since it’s surveilling the entire communication channels without a warrant. So, in essence, the government is engaging in the mass collection of telephone metadata of all domestic customers. The government officials have argued that this type of broad surveillance is justified under the USA Patriot Act which is meant to deter and punish terrorism and enhance law enforcement investigations for the following reasons:

Cybersecurity risk management has become a more challenging endeavor recently. It was never an easy task for commercial enterprises, but now that we’re facing a global pandemic and economic recession, there are additional challenges. At this point, most of our personal information is being transmitted and stored on the internet. Third-party cloud service providers have become a useful variable in the equation but they can also become a liability if there is a cybersecurity incident. Therefore, cybersecurity risk management has become more difficult especially since commercial enterprises share personal or confidential information with third parties.

The fact that our personal information is no longer in our possession or control makes cybersecurity risk management more challenging. Now, if, our personal information was stored in one location, and as such, was in one company’s possession, life would have been easier. However, multiple vendors, and third-party service providers gain access to our confidential information. So, the level of liability rises to a different stage since there is additional potential responsibilities that must be managed. In addition, some companies have allowed their employees to work from home and this business model makes it more difficult to manage cybersecurity risks. In other words, remote employees can become the proverbial “weakest link” which can be quite dangerous for the commercial enterprise.

A problem in the cybersecurity risk management formula is that change is never ending. The constant change in technology and law makes it more difficult for companies and their information technology managers to keep up. Our law firm’s cybersecurity lawyers generally recommend working with computer technology experts on a regular basis. This way, they can develop the necessary policies on their networks. They should identify the risks by understanding the cybersecurity rules and regulations. An information technology manager should implement internal and external policies to secure the network which usually holds confidential information. For example, the network should have a secure software or hardware firewall, encryption algorithm, and multi-factor authentication system. The information technology manager should develop and implement regular training sessions for employees.

Cybersecurity risk management requires proper due diligence on the company’s cybersecurity program. This is an important aspect because the company’s executives owe a fiduciary duty towards their shareholders and customers. In other words, a company’s manager or director should take every reasonable measure to ensure the safety and security of the company’s intellectual properties, trade secrets, and other sensitive or confidential information. As such, a claim or cause of action for breach of fiduciary duty can seriously hinder business operations and should be avoided by any means necessary.

We recommend properly assessing internal and external threats such as disgruntled employees or third-party contractors who were given access to the computer network system. It’s certainly possible for a disgruntled employee to insert a flash drive which yields malware into the network server to cause a malfunction. Therefore, it is important to have the right security measures implemented on the computer network system. For example, our cybersecurity lawyers recommend installing an Intrusion Detection System (“IDS”) to detect unauthorized access to sensitive or confidential files. It is important to review and understand the laws related to workplace monitoring because it could trigger workplace privacy right violations. There are state and federal laws that would impact the legal rights and responsibilities of employers and employees so it’s important to understand them. In fact, companies that fall under the definition of “critical infrastructure” organizations pursuant to Executive Order 13636 should consider implementing insider threat programs as a precautionary measure.

It’s recommended to have an enterprise risk assessment program that involves cybersecurity experts and lawyers. These computer and legal experts should join forces to establish a program that addresses the key issues – e.g., data privacy, data protection, insider threats, breach notification protocols. It’s important to have a plan before the so-called “cyber incident” so the key players will know their responsibilities. This way, when an incident takes place, there will be a preexisting protocol for everyone. Moreover, having access to a cybersecurity attorney is crucial to the company’s legal and ethical responsibilities. Our law firm advises its clients regarding the relevant state, federal, and international rules and regulations as we have the necessary background and expertise in internet, technology, and cybersecurity laws.

Cybersecurity risk management is a key component in avoiding cybersecurity incidents. Our law firm assists clients with breach response plans pursuant to the rules and regulations. An Incident Response Plan (“IRP”) should be carefully created to address cybersecurity incidents. There are strategic challenges with implementing an effective IRP within the organization but there could also be legal challenges. Hence, we encourage clients to implement a cybersecurity framework that can effectively prevent breaches. This can be done by working with qualified legal and computer experts.

We encourage clients to coordinate communications with their employees and representatives. The company’s partners and affiliates should also be aware of the breach notification and prevention protocols. This is especially important if the company has various locations and satellite offices. The company must act quickly when it finds out about a breach so that it can follow the rules and regulations. In fact, the European Union’s General Data Protection Regulation (a/k/a “GDPR”) mandates breach notification to the proper authorities within three days. In addition, in California, the law imposes a 72-hour breach notification obligation under the California Consumer Privacy Act (“CCPA”) which became effective on January 1, 2020.

We encourage clients to develop different types of response plans for various cybersecurity incidents. There are different types of breach that can take place on the computer network. In general, the bad actors compromise the computer network to steal personal information. However, availability attacks have also increased which in essence deny access to the system. For example, installing ransomware on the computers or launching a Distributed Denial of Service (“DDoS”) attack on the computer network can accomplish this task. There could be serious legal consequences if the company cannot properly protect its network which yields private and confidential information – e.g., intellectual property, trade secrets. There are various state, federal, and international laws in this context. For example, the Philippines Data Privacy Act defines a “security incident” as an event or occurrence that affects or tends to affect data protection or may compromise availability, integrity, or confidentiality.

Smart devices are being sold to consumers and businesses on a regular basis. They include smart phones, smart cars, smart televisions, smart thermostats, smart doorbells, smart bulbs, smart locks, smart watches, smart speakers, smart refrigerators, and other electronic devices. These smart devices can be recording you or collecting personal data without your knowledge or consent.

Privacy in the internet and technology age has become a major concern. This is primarily due to the existence and availability of smart devices which are even referred to as “smart spies” because they can record and transfer personal information to the hackers who use technical flaws to install spyware. This is why it’s important to review the security settings of the smart device on a regular basis. For example, smart televisions are connected to the internet, and if they are hacked into, they can easily be used for nefarious purposes. Smart speakers and digital assistants are listening to voices and that is why they can be a threat source for their users. They are constantly collecting information with or without the user’s knowledge or consent. There may be a way to delete the recently-recorded information by telling the smart device to delete the last conversation but consumers should read the user’s manual to learn about the options.

Smart doorbells, which are part of a home’s security surveillance system, have cameras and are connected to the internet. Therefore, they can be hacked into and used to record activities. For example, Ring has been questioned for sharing video recordings with police departments and third-party service providers such as Facebook and Google without the user’s knowledge or consent. It is important to view the “authorized client devices” feature to understand which device is accessing the account.

Internet dispute resolution has evolved and become more prevalent in recent years. The internet has offered many advantages when it comes to electronic commercial transactions and communications. It has enabled e-commerce websites to gain access to domestic and foreign customers. Naturally, there could be disputes between the e-commerce websites and their customers, or alternatively, between the customers themselves. These disputes are usually related to contractual rights and responsibilities which can be resolved through alternative dispute resolution – e.g., arbitration, mediation.

Geographic location of the parties can create an impediment for dispute resolution purposes. This is especially true because in most circumstances the parties hire a third-party neutral to review their files and issue a final decision. Internet dispute resolution provides an option to have the parties reach a practical solution even though they may be in different jurisdictions. The parties and their neutral judge can be in geographically different locations and need not meet in person to reach a final decision. This, in and of itself, provides a huge advantage from a logistical point. It also brings down the cost of traveling since they can use videoconferencing technologies.

Technology tools and techniques have provided a relatively stable platform for internet dispute resolution procedures. The software and hardware technologies that are available today allow the neutral judge (e.g., arbitrator, mediator), and interested parties, to effectively participate in the dispute resolution procedure. They can securely send and receive files which may include sensitive or confidential information such as financial information. These technologies are using encryption for security reasons. This way, the parties can have trust and confidence in the process and effectively use it.

Internet dispute resolution is paramount in the age of technology and innovation. Cyber-negotiation strategies have proved to be effective for online dispute resolution providers. These providers allow the parties to resolve their disputes by submitting settlement offers and negotiating over the internet.

Cyber-mediation and cyber-arbitration are part of the online dispute resolution services. They present certain advantages and disadvantages when compared to traditional mediation and arbitration. For example, online dispute resolution is effective and easy especially since it does not require the parties to travel anywhere. It is less costly and time consuming when compared to the traditional options. However, the disadvantage may be that it is impersonal as the parties do not meet the neutral judge in person. So, in essence, the entire process takes place online and no one has the opportunity to have an in-person meeting.

In most contracts, there is some kind of dispute resolution provision that allows the parties to avoid a formal lawsuit. The provision can include language about a preselection of the service provider the parties have chosen for administering the dispute resolution process. This way, they can agree beforehand that all disputes will be resolved without a formal lawsuit in state or federal court. It is important to note that litigation can be time consuming and expensive and online dispute resolution providers can deliver an alternative option.