Originally published September 3, 2014
E-discovery is everywhere. It's on blogs and websites, in e-mails and texts, and on Instagram, Facebook, and Twitter. It's a product of the new way that we live, work, and play in the modern digital world. We speak less and text more, and with a simple click of the "post" button from our smartphones anywhere in the world, we can provide an indelible, public bookmark for an otherwise private thought — however fleeting and without regard to its impact — for retrieval by just about anyone for just about any purpose.
Much like the other areas of our lives that the digital revolution has so dramatically impacted, an entire generation's speech patterns have been changed by the onslaught of new technology. To put it succinctly, the social media generation has reshaped acceptable vernacular by creating a new dialect that is uniquely its own. This new language has shortened otherwise lengthy prose into snippets of statements and emotion packed into a couple of letters, an acronym, or an emoticon to fit within the one hundred forty permissible characters of a Tweet, a Facebook post short enough to be read in a single glance at the user's News Feed, or an e-mail or text sent before the traffic light turns green. We all have come to appreciate that these pithy little statements pack far more meaning than meets the eye, and they are a microcosm for a society that has embraced its lustful need for instant access to everything and to constantly share its perspective, even if nobody is listening.
This, no doubt, presents just as many challenges for law enforcement as it does for private litigants as they sift through the mass of bits and bytes that have replaced the more formalized communications of yesteryear. Just like foreign language communications require translation, the new dialect of "digispeak" is not always immediately decipherable on its face. If you saw the capital letters "ROFL" combined to create what appears to be a word of unknown etymology ten years ago, would you know what it meant?
In response to a Freedom of Information Act request by the website MuckRock.com, the Federal Bureau of Investigation ("FBI") revealed earlier this year that it has been keeping tabs on the modern trend of using sometimes cryptic, symbolic speech to communicate. Much to the chagrin of Language Arts teachers across the nation, BRB and LOL are here to stay, so the feds are making sure that they have the 411 (for all of you that are not so up on the lingo, that's "the information") on the way that people are speaking to one another today.
As if e-discovery and digital forensics did not pose enough challenges as they meld a technology driven society into a legal system that was created when quills were dipped in ink and candlelight brightened a room, it turns out we may very well need a new set of certified translators to make sense out of the latest incarnation of the English language. As digispeak becomes an increasingly accepted social norm, questions abound regarding the extent to which our legal system is presently equipped to handle this new dialect. The digital world that was created with the advent of the internet is constantly changing. The evolving "internet of things" presents the possibility that our world and the objects we use in it will soon be linked in ways that were once unimaginable through mere bandwidth alone. Although it was once thought to be the language of middle school flirting, digispeak might play a more prominent role in matters of far greater significance moving forward. Judging by the FBI's dedication of resources into developing an extensive glossary of digispeak terms, phrases, and sybmols, it is clear that the nation's primary law enforcement agency feels that way.
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