Originally named predictive coding, this process has since been renamed TAR (Technology Assisted Review). The original TAR methodology has been improved upon with TAR 2.0 and, most recently, TAR 3.0. All of these TARs have one thing in common – they require a subject matter expert, or SME, (typically a senior lawyer or client representative) to train the computer system. Until recently, TAR involved using a Latent Symantec Indexing system (commonly called a conceptual engine) to identify documents that contain topically similar content – if one document discussed oil wells, and another discussed transporting oil from a well to a refinery, they were identified as discussing similar topics. Conceptual systems generally work well.  Sure, in some cases, they fail to find records a knowledgeable lawyer would clearly identify as relevant, but generally, the technology has proven to be accurate enough. However, TAR can be so much better.
 
Back before predictive coding arrived on the scene, well developed entity extraction technology was already available. Entity extraction analyses sentence structure to identify people’s names, places, dates, financial transactions, and brand names, among other things. An entity analysis will determine that someone with a last name “Rock” is not the same as a big stone or a type of music (concept systems do this too, but not as well).  One could conceptually search for the term counterfeit and see that the concept engine also suggested knock-off as a similar term. However, since “knock-off” could also refer to the time to stop working (as in “What time do you knock off?”), using the results of the concept search alone would bring in false hits. By following up the concept search with an entity search that would look for the terms “counterfeit” and “knock-off” where they are associated with brand names, such as “Gucci”, the results would be much more focused and accurate. The smoking emails that contain colloquiums, or slang, are less likely to be missed.
 
Understanding the technology, and how to combine different techniques to arrive at a more accurate result, is a different skill set than the legal expertise of the SME.  To obtain the results when adopting TAR, working side by side the SME should be a professional with the technical expertise to assess the tools and the process.   The combination of both skill sets gives the best results.  

​Our blog, Wortzmans Weighs In, was nominated for the Expert Institute’s Best Legal Blog in their 2015 Contest.  We are hoping to repeat this accomplishment in 2016.  Blogs can be nominated by friends, fans, and colleagues by filling out the short form at the bottom of the nomination page and explaining why Wortzmans Weighs In deserves a place in the voting round of the competition. The nomination period closes on September 5th at 12:00am (EDT).
 
Please take the time to support our nomination – it means a lot to us to have the support of our readers!  

​Two big announcements were made this week dealing with encryption. First, the Chinese launched a satellite that will test "unhackable" quantum encryption for communications.  This technology is apparently capable of detecting interception attempts and then deleting or changing the content.  At the same time, Canadian police chiefs have called on the government to pass legislation that would force people to hand over their encryption key or passwords, with judicial authorization. 
 
Does this mean that encryption has won, and that as long as we keep our passwords safe our information is secure?  The answer is generally yes, and it has been that way for sometime.  Although it is still possible to hack into a password protected device or document, the most common approach is still brute force (trying every possible password combination). Cyber criminals have known for years that humans are the weak link in the security chain, and generally focus on getting us to tell them our passwords through phishing and other ruses. 
 
As encryption gets better, protecting the encryption key or password has become a priority.  Law enforcement is frustrated by their inability to access key sources of information on computers and mobile devices when the password keeper exercises the right to remain silent.  The police would like legislation to compel people to turn over that information.
 
There are many challenges in designing legislation that will be effective at forcing password disclosure. First, unless the penalty for failing to comply is as great as the offence itself, expect the subject to choose the lesser evil (the sanction for refusing to provide a breath sample is a good example).  Second, it will be hard to distinguish between an "I forgot" and an "I won't tell”, and so the mens rea, or intent, required to convict for failing to provide a password may be difficult to prove.  Finally, expect new apps or operating systems that will delete or conceal data when a trigger password is entered, as well as other enhancements to protect information.
 
We are watching the developments in the privacy - security - technology battle closely, and think it is far from over.  For now, however, it appears that the technology of encryption is still winning.