cy. We use our car’s GPS, we post on Face- book, we buy on Amazon, and we use loca- tion service apps on our smartphones. We create our own “big data” cloud about who we are, where we are, what we do, what we like and what we don’t.
The government took a huge bite out of our privacy at the end of 2012 when it ad- opted rules that allow the little-known Na- tional Counterterrorism Center (NCTC) to examine the government files of U.S. citi- zens for possible criminal behavior, even if there is no reason to suspect them. In the good old days, the government couldn’t store information about ordinary Americans unless they were a terror suspect or related to an investigation. Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting for- eign-exchange students, and many others. It can keep data about innocent U.S. citizens for up to five years (talk about “big data!”) and analyze it for suspicious patterns of be- havior. Previously, both were prohibited. Data about Americans “reasonably believed to constitute terrorism information” may be permanently retained.
Online privacy continues to shrink as our
data and our activities grow in value. There is fertile ground for privacy lawyers in all of this—and the opportunities will continue to grow.
Compliance and Security
Will we reverse course and, instead of get- ting rid of all the data we don’t need, be- gin to keep everything? How will compliance laws and regulations handle big data? No one yet knows, because this is a fairly new phenomenon, but there is sure to be more legal work in assisting clients with compli- ance issues.
Our own view is that keeping everything will never make sense—not in a world of per GB pricing for e-discovery (which will prob- ably be per terabyte pricing in the near fu- ture). While it makes sense to keep informa- tion that may be useful (or legally required), “taking out the trash” still makes sense to save money in possible litigation. But we will want to keep everything that may be useful in this new big data world for analysis. It is defining “useful” that is causing all the con-
©2013 Sensei Enterprises ____________________ Sharon D. Nelson, Esq., and John W.
Simek are the President and Vice President of Sensei Enterprises, Inc., a legal technol- ogy, information security, and digital foren- sics firm based in Fairfax, VA. 703-359-0700 (phone)
www.senseient.com.
____________________ 1
If you’ve ever wondered about the myriad
ways in which big data can be used, perhaps by some of your clients, it is well worth read- ing the article at
http://www.networkworld.com/
news/2013/
022513-etsy-big-data-266841.html. 2
John Edwards, Combing
Big_Data_universe. 3
Id. Through the
Big Data Universe, available at http://
www.law.com/jsp/n lj /PubAr ti cleNLJ . jsp?id=1202585643381&Combing_through_the_
troversy. Balancing compliance factors with big data’s benefits and risks will no doubt in- volve both in-house and outside counsel as data governance policies are developed. The federal government has begun to warn about the security dangers implic- it in big data and security companies have been scrambling to produce big data secu- rity products. Once again, clients are going to need advice about this aspect of securi- ty and how it impacts risk management—a dicey opinion to give with security manage- ment of big data still immature and chang- ing rapidly.
Final Words
We know that we have only scratched the surface of big data. As you have seen from the snippets we’ve shared, big data will offer lawyers new opportunities for work and for serving clients in a more efficient and pre- dictable way. It will also be used to evaluate the performance of lawyers and law firms, which will be repugnant to many. Avvo and other lawyer rating sites will no doubt get in the big data game, too. No joy in Mudville there. However, early adopter law firms who use big data analysis wisely will be far ahead of their competition. Whatever it brings, big data is here to stay and the task at hand for lawyers is to learn what it is today and what it will be (as our friend Richard Susskind would say) for “Tomorrow’s Lawyers.”
IN
MEMORIAM Frank V. Petrosino III
Born Nov. 17, 1968, in Red Bank, New
Jersey, Frank V. Petrosino III of South Burl- ington died August 22, 2013. He attended Boston University and earned his law de- gree from New England School of Law in Boston. He was an attorney at Paul, Frank + Collins. He is survived by his wife, Hei- di, two sons, his parents, a sister, a brother- and sister-in-law, three nephews, and three nieces.
Joseph F. Daschbach
Born August 20, 1937, in Pittsburgh, Pennsylvania, Joseph F. Daschbach, 75, of Lyme, New Hampshire, died August 10, 2013. After earning a bachelor’s degree at the University of Notre Dame in 1959, he served in the US Navy from 1960 to 1964. He earned his J.D. from Georgetown Uni- versity Law Center in 1968 and joined the New Hampshire bar. For more than forty years he maintained a general practice in Lebanon, New Hampshire, with an empha- sis on civil litigation and, later, in mediation and arbitration. He also served as a New Hampshire District Court Judge for twenty- five years in Hanover and Lebanon. He was a member of the Vermont and New Hamp- shire bar associations, the Association of Trial Lawyers of America, the New Hamp- shire Trial Lawyers Association, and the Grafton County Bar Association (for which he served as president). He was a member of the Board of Overseers of Dartmouth Hitchcock Medical Center and held several others board memberships. He is survived by his wife, Eileen, two daughters, a son, three sisters and numerous other relatives.
Real Estate Law Day November 13, 2013 Capitol Plaza, Montpelier
www.vtbar.org
www.vtbar.org THE VERMONT BAR JOURNAL • FALL 2013 35
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