Systems of evidence in the age of complexity.

• Author: Paul, George L.
• Position: Electronic Discovery and Digital Evidence

The global economy is transforming in unprecedented fashion. Persistent, exponentially advancing technologies (1) now rival the invention of the printing press in their importance to society. (2) Indeed, respected economists declare that what is happening is the biggest development in the history of economic activity. (3) The result? Complex systems will soon define reality and a new civilization is emerging. And what is happening in the legal realm? Our system of evidence now fails to comprehend the emerging complexity that may soon overwhelm us. Accordingly, the rule of law is in jeopardy.

Clearly, our system of evidence must become more realistic. The "observations" (4) in this article discuss why and will address the following issues:

1. Inflation of Information: How the three principal drivers in our economy--processing power, information storage capacity, and bandwidth--now push ever-increasing amounts of complex information through our technologies and minds in a process termed "information inflation." (5)

2. Society's Cognitive Disconnect: How, because of the exponential nature of information inflation, it is difficult to forecast future developments using everyday societal intuitions, and thus information inflation creates a cognitive disconnect that can be fatal to public policy.

3. Complex Information Systems: How our economy is now experiencing a proliferation of "complex information systems," which as a consequence of their complexity, defy understanding and thus make the testing of their actions either impossible or exceedingly difficult.

4. The New Complex Evidence: How such complex information systems sense events, record data, enter into transactions, and transform information in complex ways; and then state, decide, opine, and define our reality in written records, oral communications, and immersive experiences. These systems will become increasingly complex in the short-term future and already facilitate a mind control of sorts. (6) In the mid-term, there are implications that are staggering in their consequences.

5. Failure of our System of Evidence: How our evidentiary rules have no tradition of testing complex information systems, rendering existing jurisprudence outdated, inappropriate, and incapable of comprehending important evidence.

6. The Common Law Function: How the system of evidence must now acknowledge that complex information systems are a new type of "declarant" under the law of hearsay. Because of the pace of change, the system of evidence must now embrace a new "common law function," which will permit it to co-evolve with society in its new Age of Complexity.

   1. THE NEW LIFE OF INFORMATION

      Seven years ago, I co-authored the article, Information Inflation: Can the Legal System Adapt?, (7) with Jason Baron. It has been cited over a hundred times in cases, articles, legal briefs, and in a decision by the Supreme Court of at least one nation overseas. (8) Some consider the article seminal because it forecast how the legal profession would evolve so as to comprehend the data created by the inflation of information. The technologies the article predicted have come to pass and have been commercialized. They are studied in institutes and discussed in federal court decisions. (9)

      Information Inflation did more than predict how the legal profession would plumb vast new seas of information in discovery. It highlighted evidentiary concerns. Its second paragraph stated: "As problematic as quantity are the diverse new forms of writing which emerge constantly as a consequence of information inflation." (10) The article posed the conundrum posed by a complex system:

      In such a system, the whole exhibits an emergent behavior that is much more than the sum of the parts. Critically for law, such systems cannot be understood or explained by any one person. As a result, writing has now grown into something akin to a "new form of life." (11) Consider the idea "a new form of life." Since Information Inflation was published seven years ago, digital information continued its inflation and catalyzed further transformations in our civilization. What was viewed as "writing" seven years ago has evolved into society-wide behaviors, implicating the dynamic of language capability. (12)

      As an example, the devices we all carry have grown smaller and more powerful, and they are now "wearable" and designed to mesmerize with complex digital stimuli, and most critically, citizens are already addicted. Such behavior is new to Earth. (13) These devices are evolving exponentially. 3-D screens and eyeglasses? Devices tattooed into your throat? Yes, they are already here and it is only the beginning. (14)

      In addition, cloud computing achieved dominance. Its business model revolutionized the economy. Among other things, it supports the societal addiction to the devices by means of "apps," of which there are now more than 1,000,000 kinds. (15) These apps query vast databases in real time and do amazing things.

      This infrastructure, in turn, has enabled new species of "mind networks." (16) Such systems are so catalytic that a single message can network out so as to be read by 100,000,000 people in six days. (17) Minds on earth can publish far and wide, instantaneously, and in turn are constantly devouring designed channels of digital information. The networking of these separately powerful technologies--all built on a pre-existing Internet--triggered the emergence of a "technological complex," (18) which snapped together soon after Information Inflation was published. The complex is global, and there are now more mobile devices than there are people on earth. (19)

      All the while, more and more types of things became increasingly intelligent. Things now incorporate tiny processors and other miniature devices which sense, decide, transmit, record, and then make both decisions and declarations. Cars, for example, are increasingly beginning to drive themselves. Tennis rackets and basketballs can be intelligent. (20) There are devices in bridges, roads, and agricultural fields, all in order to make those things intelligent. Might you want an information system to manage a beef production industry--for a designed, national "cow infrastructure?" Then imbed a miniature device in every cow living in the nation in order to monitor its activities from birth to death, as is currently being done in Uruguay. (21)

      Almost anything can be made intelligent. Huge companies are just now rolling out new species of chips and devices to facilitate communicative intelligence in both animate and inanimate things that are not computers. The infrastructure is already here. It is currently estimated there are ten billion things on our Internet and that there will be many multiples of that number by the end of the decade. (22)

      But what if a new Internet were to emerge? Some sort of awesome "ultranet," which would connect all such increasingly intelligent things with their ever-shrinking communicative devices? That too is already happening. Currently a new Internet protocol, called IPv6, is being refined. It will permit the number of potential IP addresses to exceed the number of atoms on the face of the planet. (23)

      Such a backbone will allow all our increasingly intelligent things to be connected in a network the size and scope of which will be unimaginably profound. The nodes will connect devices already so small that some now approach the size of a piece of dust. (24) Most say the emergence of such a creature is now inevitable, and it is increasingly called the "Internet of Things" or "IoT." The network is already here to some extent and facilitative technologies currently are growing it by 100 new things each second and the pace is accelerating. Most say such a mind-blowing Internet of Things will be here ten to fifteen years in the future, but possibly sooner, as the Internet inflates from a few billion things to a number approaching a trillion things.

      In addition, ever-increasingly complex arrays of digital information are now routinely fed into human minds. Are you using your 3-D technology, perhaps on eyeglasses simulating a virtual reality? Social science research in the jury context demonstrates that even primitive forms of such digital experiences alter memories, implant false memories, and fundamentally alter decision-making dynamics. (25) Powerful new forms of mind control have been commercialized and there is a nascent jurisprudence on the subject. (26)

      Look in front of your face. It appears some sort of a "new mind" is looming up during our very lifetimes, when our species faces a great test of sorts. Should we take the timing for granted? Are there perhaps ethical implications--a call to action for the protectors of our liberties? Are there indeed fiduciary duties for the noblest of professions?

   2. CHALLENGE TO THE LAW OF EVIDENCE

      The Law of Evidence faces the biggest challenge of its three hundred year history. Information systems are now complex. They constantly network to realize potentialities large and small, and emerge into new structures that defy understanding and testing. They sense things. They decide things. They make statements about their decisions. They make records. Soon they will be making declarations of all sorts as a new economy sweeps over the globe. Complex information systems will in some part even define our reality, as they are being used by and therefore are themselves using human minds in a "grand tether" of sorts. (27) Clearly, there is now a new type of "declarant" in society, which can be said to make "declarations of complexity."

      How can society deal with evidence generated, recorded and then stated by declarants so complex that no one can understand their inner workings? How can we test such assertions? Shall we simply take a chance and assume for the remainder of civilization that all statements made by complex systems are always true and just? Shall we let them define our reality for all time?

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