Debbie Reynolds “The Data Diva” talks to The Honorable Justice Tanya R. Kennedy, Associate Justice, Appellate Division, First Department, New York Supreme Court. We discuss technology-related changes to court proceedings due to Covid 19, the digital divide, access to justice and the benefits of technology, the loss of privacy in the digital age, explaining technology in court cases, the proactive elements of the NY Shield Act, difficulty in consensus on legal adoption of technology, the American Bar Association (ABA) rule to make sure that lawyers know the risks and benefits of technology, inconsistent data privacy protections on U.S. State level, the loss of anonymity in the digital age, her wish for data privacy in the future.
Debbie Reynolds “The Data Diva” talks to The Honorable Justice Tanya R. Kennedy, Associate Justice, Appellate Division, First Department, New York Supreme Court. We discuss technology-related changes to court proceedings due to Covid 19, the digital divide, access to justice and the benefits of technology, the loss of privacy in the digital age, explaining technology in court cases, the proactive elements of the NY Shield Act, difficulty in consensus on legal adoption of technology, the American Bar Association (ABA) rule to make sure that lawyers know the risks and benefits of technology, inconsistent data privacy protections on U.S. State level, the loss of anonymity in the digital age, her wish for data privacy in the future.
Honorable_Justice_Tanya_R_Kennedy
37:39
SUMMARY KEYWORDS
technology, court, privacy, people, laws, debbie, educate, respect, persons, hearings, issue, virtual, lawyers, attorneys, state, uniformity
SPEAKERS
Debbie Reynolds, Honorable Justice Tanya R. Kennedy
Debbie Reynolds 00:00
Personal views and opinions expressed by our podcast guests are their own and are not legal advice or official statements by their organizations. My name is Debbie Reynolds, and this is "The Data Diva" Talks Privacy podcast where we discuss privacy issues with industry leaders around the world with information. Right now, I have a stellar guest here on the show today. I am so happy and proud she agreed to do this show. This is the honorable Tanya R. Kennedy, who is an Associate Justice of the Appellate Division first department of the Supreme Court of New York. Hello, Justice Taya Kennedy.
Honorable Justice Tanya R. Kennedy 00:51
Good afternoon, Digital Diva, Debbie.
Debbie Reynolds 00:59
Well, I've been so thrilled to watch your career and the things that you've done. You've had so many different honors in your career, and just to watch you, you know, ascend in your career and also have the privilege to see you speak on different topics at certain conferences and things has been a delight for me. I actually first encountered you, actually knew who you were before. But the first, time I had been in a room with you was in 2019 when I attended the ILTA (International Legal Technology Association) conference in Florida. And you were one of the speakers that day. I was a speaker as well. But I think you were like the top speaker for that day. Because they saved the best for last. And I was really struck by your presence. You have a rare talent to be able to command attention without doing anything. So you really stood out in that room even when you weren't speaking. And then, when you were speaking, we were transfixed. We were hanging on to every word that you said. So I'm so honored and thrilled that you're here with me today.
Honorable Justice Tanya R. Kennedy 02:15
Well, Debbie, if I may, let me just say that I am just so impressed with you. And I thank you, number one, for reaching out to me via LinkedIn. And we're now connected through LinkedIn, and then invited me to speak on this podcast. Debbie, I am so impressed with you. And the reason why is because you are an African American woman who is a superstar in this space. And there are not many of us who look like you. And so I've also been following you, Debbie. I believe it was in March that you were one of the panelists for the University of Florida, eDiscovery conference Data Privacy panel. Now you know that when you usually appear at the various conferences, I send you a text just to say job well done. I didn't do it. But you were just incredible. So I follow you. Since we've been connected, as you know, I have tuned in to the various programs, as you say, virtual programs. And I just appreciate your knowledge, your creativity. And I'm just so proud of you. And let me just say that you are a role model for young girls and women to know that people like us can not only enter but excel and advance in this area. I salute you. Digital Debbie Diva, you are a triple D threat.
Debbie Reynolds 04:20
Oh, thank you so much. You're trying to make me cry on my program. Oh my goodness!
Honorable Justice Tanya R. Kennedy 04:25
Don't do it. Order from the Court!
Debbie Reynolds 04:32
Oh, my goodness. Oh, my goodness.
Honorable Justice Tanya R. Kennedy 04:35
Well, your mother should be proud. Proud.
Debbie Reynolds 04:41
Thank you. Thank you so much. So much has changed now. Because of COVID and how much technology's had to help courts adjust to kind of the new reality. I would love your thoughts about how technology is changing things in courts as a result of COVID, like, you know, before, we aren't doing as many remote depositions or hearings and things like that, so I'd love your perspective on that.
Honorable Justice Tanya R. Kennedy 05:11
Well, let me say, certainly, that support had to adapt so quickly. This was something that the courts were not used to. But I think that the court did an excellent job in converting under the circumstances. Let me say that virtual hearings are here to stay. This is my personal opinion. Certainly, when it comes to jury trials, we need to be in person, but there were certain proceedings, certain matters that can be handled virtually, for example, conferences, they can be handled, virtually, certain limited hearings, those can be done virtually, as well. More efficient, less expensive. Certainly, when we're talking about lawyers, sitting time on end in a courtroom, the same thing goes for motions. These also can be done virtually, and I'm talking about oral arguments. Certain motions can also be done virtually, as well. One concern that I have is this digital divide. We've seen this through COVID. And I'm talking about rural areas, persons of low income. So this is an issue that we have to address. But I think that we are all the better for it that we have transformed our residences into virtual courtrooms, offices, and we rose to the occasion. But certainly, that's my take with respect to COVID 19. And technology. It's been very efficient.
Debbie Reynolds 07:55
Yeah. I'm glad that you touched on access to justice issues, or the digital divide is such a huge problem, right? And maybe I'm mischaracterizing this. But I think, as a result of some of these types of hearings or meetings being virtual, it may help to bridge that divide in some way. Because not all, you know, like, say someone who's indigent, who couldn't come physically come to court in some way, they could still participate in the hearing, what are your thoughts about that?
08:32
I totally agree. Because there are some in our population that they not, they may not be able to take off work, as you indicated. So maybe they can call in. And I'll just give you an example. In New York, I know that there is a partnership between the courts and certain centers of faith that serve as remote locations for persons to log in and participate. So I think this is a wonderful thing. And more areas across the nation can think about this, providing access to others to log in to the courts.
Debbie Reynolds 09:37
Right.
Honorable Justice Tanya R. Kennedy 09:37
Let me also say, Debbie, if I may, that for me and other lawyers, we enjoy the courts, right? But then there are persons who feel so intimidated and perhaps participating virtually gives them more of a comfort, more of a sense of ease.
Debbie Reynolds 10:02
Right. I hadn't thought about that. That's a great point. That's a great point. So, because of so much, now, because people are working from home people are, you know, more people are getting on the Internet than before we talked about the digital divide. And then some of that, especially as related to children, you know, some kids before the pandemic didn't have a computer at home. So there were school districts that were rushing to give people computers or laptops so that they can actually participate in online learning and things like that. But as a result of all that, you know, that opens up kind of more Cybersecurity issues, and also privacy issues about keeping things confidential and things like that. Have you seen or have you experienced those types of things as a result of people doing things more remotely?
Honorable Justice Tanya R. Kennedy 10:57
I'm going to answer it this way. Certainly, I have not encountered that. And, and I'm assuming that you're talking about COVID. Right now, or even before, I just want to make sure that I answered the question.
Debbie Reynolds 11:11
I'm talking about it since COVID has happened.
Honorable Justice Tanya R. Kennedy 11:14
Okay.
Debbie Reynolds 11:14
All the changes?
Honorable Justice Tanya R. Kennedy 11:16
Sure. I have not experienced that personally. And certainly, I haven't presided over a case like that. But I will say this because of the enhanced use of technology, right? It's imperative more than ever that not only the bench but the bar and the general community certainly are more knowledgeable, you want to stand about technology, and just it as relates to an attorney, when we're talking about competence, right, with respect to model rule 1.1, you know, the model rules of professional conduct of the ABA, that certainly lawyers must have the requisite knowledge with respect to the benefits and the risks associated with relevant technology. And so certainly, as we're moving away from brick and mortar, right, with respect to virtual offices, that will be even more imperative. And I know that the ABA had issued formal opinion 498 this past March, March 10th, to elaborate on the ethical rules as it relates to the virtual practice. Right.
Debbie Reynolds 13:08
Excellent. Well, I want to shift a bit just about privacy. Privacy touches all of us in some way, right, professionally, personally. What are things that are concerning you now, either professionally or personally, related to privacy in the world?
13:33
Well, I don't mean to be sarcastic, but I don't think anybody has any privacy anymore, Debbie. And hopefully, you know, you will invite me back, you know, so we can further, you know, discuss this, but I think there's such an intrusion. With respect to individual privacy, you know, when talking about certain biometric measures, I'm kind of concerned about just this lack of privacy. But, you know, if we're talking about privacy and security, I think the issue is for all of us in our home, since we have been working remotely, and some people will continue that on some type of part-time basis. Right. And that persons have been allowed to use personal equipment, their own equipment, it's really important that we have proper protocols in place when we're storing data. Certainly, when we're transmitting data, We have to make sure that we have the proper security protocols in place. And I think that's really the issue. And that once again, you know, judges, attorneys, the staff have to ensure that everyone has the proper training with respect to this, you know, how are you storing information? Right? You know, how are you protecting your software? Obviously, Zoom is here to stay, whether you like it or not. So, you know, whether it's Zoom, whether it's Microsoft things, right, you know, how are you ensuring that those platforms are our state? And once again, you know, when we're talking about transmitting documents? So, I think that's really smart.
Debbie Reynolds 16:10
Basically.
Honorable Justice Tanya R. Kennedy 16:11
Yeah, let's say it that way, you know, the smart speakers, right. And other, you know, listening-enabled devices? Certainly, I have a concern with that, personally, because I said I just don't think there's any more privacy, but that's another podcast.
Debbie Reynolds 16:36
Absolutely, absolutely. I try not to invite surveillance into the house. So I don't use smart speakers or smart lightbulbs or IDs, deactivated the smart features on my TVs because I don't, you know, I can use a remote. You know, I remember when we didn't have remotes, I was the remote! Right. So it's fine for me to pick up the remote and use it as opposed to trying to talk to the TV.
Honorable Justice Tanya R. Kennedy 17:06
And, you know, and I don't have it, you know, and I don't have it here. And just, you know, we all know, right, that, you know, pre COVID, 19? How there were various, you know, breaches, you know, in the course of the nation, just other industries, right. And, you know, with respect to just ensuring that you are not using any unauthorized, you know, programs or apps on court-related computers. And certainly, you know, we've been trained, right, with respect to certain emails, because of the various phishing that goes on. So it's about, you know, educating, educating yourself, educating the staff, because the bottom line is that technology is always changing, and you just have to be up to date as possible. Right. And I think that has been one of the issues. This is just my humble opinion. Right? When we're talking about, you know, maybe some judges, maybe some lawyers, this fear of technology, you say,
Debbie Reynolds 18:20
Right, absolutely.
Honorable Justice Tanya R. Kennedy 18:22
So there was resistance, but the bottom line is that it's here to stay.
Debbie Reynolds 18:30
Absolutely. I'm actually happy about that because I used to be concerned about things where people were going, you know, flying across the country just to be in a hearing for one hour and flying back at the same time. Like there could have been a better way. So I'm glad to see that, you know, you know, the world will be hybrid, right. So we won't all be all the way at home all the time. We will always always be in the corridor and office all the time. So I think it's just a new hybrid world we have to adjust to right now.
Honorable Justice Tanya R. Kennedy 19:03
Oh, absolutely. And listen, and we've seen the legal profession change right before our eyes. Right. And it will. It will continue to do that. It will continue to evolve. And it's because of technology.
Debbie Reynolds 19:18
Right? Yeah. I want to touch on something a bit. And this is something I've talked about a lot in my work. And that's kind of having to be able to explain technology and courts. So the explainability of it. So as we see, a lot of court matters now involve some element of technology in cases. So you know, I watch very closely are cases where there they have to explain as part of their case how certain technologies work, and to me that I'm concerned about it because I feel like if technologies aren't explained In the right ways, then you know, lawyers or courts will make judgments based on something that's not correct. Or so I don't know, what are your thoughts about that?
20:14
Okay, I'm gonna give you a Part A and Part B answer. Okay. So, you know, the Part A, we know about rule 1.1. lawyers have to be knowledgeable. Right. And certainly, I know you talk a lot about it because I've heard you talk about Ediscovery as well, right. And so the issue there is because a number of lawyers really don't understand technology. And if that's the case, then you should retain the appropriate experts to assist you in that, because that's when a lot of snafus happen, because of the lack of knowledge. So it's incumbent upon attorneys to obtain the knowledge, right, or have an expert to assist, and then provide the court with that information. I also take the view that judges have to educate themselves. And Debbie, this is something that I can see you do. I've indicated that I, you know, was basically new to this space. It was in 2017 that I started to educate myself and, and we have mutual friends in this space, but working with them but also requires judges to be proactive to educate themselves on this area. Right. Now, of course, B, Part B is totally something different. And let me just go back to A, and that judges and lawyers can work together. And Debbie, I don't know if you see me on other webinars, where I've indicated that the lawyers should educate the judges, there are different boards association. You know, judicial associations, and certainly the attorneys can come before the associations to provide the information if they have right. Now, Part B. Part B is the general public because many of the litigants are self-represented just because of finances. I think that you will see an increase in the number of persons appearing self-represented because of the lack of funds. Now, I am cautious about having court personnel explain the technology. Now, I know that there are different court websites explaining to the general public how to use certain platforms. I think that is appropriate because that's in furtherance of access to justice. But I think one way to deal with that issue, we're talking about self-represented, perhaps there could be a bar association in conjunction with the court to sponsor a program for the benefit of the general public, but I would be hesitant, and having court employees indicate to a self-represented person, what technology is. And I think that answers your question.
Debbie Reynolds 24:11
Oh, yeah, absolutely. Absolutely does. So New York, obviously, as a leader in finance. So it did not surprise me that New York passed this New York Shield Act, which is a Cybersecurity Act to protect the financial transactions of individuals. Did you have any thoughts about that act?
Honorable Justice Tanya R. Kennedy 24:36
Well, you know what, I mean, I haven't had any cases, you know, with it. And certainly, I think that it's a good thing. You know, I know, it's very expansive. And I think one issue is that, once again, if we're talking about competence, you know, the attorneys are going to have to know this, but I think one issue is that you have so many different laws and regulations. And I know you talked about this. And there was, I think, an article in the law journal a couple of weeks ago about there should be a national standard, rather than a hodgepodge of different state regulations that have some uniformity in this area.
Debbie Reynolds 25:23
Right? I agree. Well, to me, the Shield Act is important, is definitely important, obviously, because people look very closely at New York. States look in New York, especially around finance, but probably one of the most important things the Shield Act did will say that you have to, on a regular basis, have some type of check of your Cybersecurity, you know, standing, you know, what you're doing with data and stuff like that. So, up before that, there really, you know, although there are rules and regulations about what you would need to do after something will happen. I like the fact that the Shield Act is sort of calling out sort of those proactive steps, like these are the things that you need to do to be secure, just in general. And then obviously, you know, if a breach has happened, and they tell you what to do, but I really like that proactive part of those that law.
Honorable Justice Tanya R. Kennedy 26:26
Because it's really about listening, okay, what is the risk assessment? Am I correct about that? Because this is relatively new. Absolutely. Right. I mean, that's the emphasis of the app.
Debbie Reynolds 26:45
Absolutely. Absolutely. Right. It's about preventive in the in what would happen if something should happen? So I think, you know, prevention is much better than cure, in my opinion.
Honorable Justice Tanya R. Kennedy 26:58
Right. That's why I said. I think it's a good thing. Because, you know, it's about risk assessment. So I think that's a good thing.
Debbie Reynolds 27:07
Yeah. And then, you know, you have mentioned something about the difference between having a hodgepodge of state and local laws, as opposed to having like a Federal standard. What are your thoughts about that?
Honorable Justice Tanya R. Kennedy 27:25
I think uniformity is always key because, you know, it provides guidance and clarity.
Debbie Reynolds 27:33
Right. Yeah, I think so. I think, you know, I think I would love to see some uniformity. I just think it will be hard to hard to get a consensus on a lot of stuff. But I think, you know, my opinion is, you know, all 50 states have data breach notification laws. And if we can unify that, across the US, that will be a huge step, because right now, you know, state, the state is different in terms of what, you know, how you define what a breach is, you know, what are the reporting requirements, so being able to harmonize that I think will make things so much better, you know, as a first best step, and then maybe build upon that. I agree with you. Yeah. Well, hopefully, other people agree with me too. To be determined. Yeah, exactly, exactly. As we're seeing, you know, as we see all these regulations go on around the world, and, you know, as, as different places are enacting them, I'm seeing, you know, these new laws are being enacted, they're kind of cherry-picking certain things from other laws, which, in some ways is good, because it, you know, it sort of has a thread between these laws that have similarities, but there are also a lot of differences between these laws. I don't necessarily see that as stopping right now. I think the states are pushing ahead with, you know, passing new laws, and in some ways, I feel like I'm a state level. Some states want to be different than other people. So it's not to be congruent but to stand out in some ways. I don't know, what are your thoughts?
Honorable Justice Tanya R. Kennedy 29:27
You know, this is something I tell you that I haven't really given much thought of, but, you know, once again, I think that each state has to, you know, address its particular, you know, concerns as it relates to its, you know, residents. But, as I said, I just think that it would really help and clarify if there was just one standard.
Debbie Reynolds 29:54
I would love that. That'd be great. Pray, pray that they have this resource. We shall see. Yeah, yeah. What are the challenges that you see in the future? And maybe people aren't talking about as relates to privacy that we need to really be thinking about and your opinion? I'm gonna make me think about this one, huh? Well, I can tell you. Okay. Okay. I'm concerned about connected devices, like these Internet of Things devices, as technology gets more sophisticated, you know, these days can track and log and catalog a lot of information about individuals that may not be evident to the individual. We're not sure how that data is being used. I think that's my concern.
Honorable Justice Tanya R. Kennedy 30:52
So I'll add to that, and this is going to be part two of our conversation. Does that be right? When you invite me back or find myself back, right? Is this is the whole thing about, there really is no privacy. But then, coupled with that, is, there's new technology every day, and just in the law can't keep up with it. So there's always going to be a gap. Do you understand? Right??
Debbie Reynolds 31:21
Absolutely.
Honorable Justice Tanya R. Kennedy 31:23
The new technology and the laws? Because we can't keep up?
Debbie Reynolds 31:31
Yeah, that's true.
Honorable Justice Tanya R. Kennedy 31:33
Once again, layered over that Debbie? Right, layered over that. Because if there's an issue now, and there is with a competence, that will even exacerbate the issue? Right. Absolutely. with with with competence? I think that's my answer.
Debbie Reynolds 31:59
Absolutely. Absolutely. And then, you know, ethics is in there, too. Right.
Honorable Justice Tanya R. Kennedy 32:08
Oh, obviously, well, you know, that's what I talked about, you know, 1.1. But there are other things as well to ensure that, you know, you get the information remains confidential, right, you have issues regarding supervision, with respect to attorneys and other professional staff to ensure that they guide themselves accordingly. And then you have vendors. So that's another layer as well, to ensure that information, as you say, confidential information remain so. Right. And then the supervision of those in your employ.
Debbie Reynolds 33:00
Absolutely, absolutely.
Honorable Justice Tanya R. Kennedy 33:02
And then when we thought about that, he said, just to make sure that you felt that confidential information isn't being utilized.
Debbie Reynolds 33:11
That's right. Absolutely. Right.
Honorable Justice Tanya R. Kennedy 33:14
Not used, but you know, being disseminated.
Debbie Reynolds 33:20
Right, yeah, exactly. I always tell people that if you're working on confidential information that I don't recommend that you have smart speakers in the room, smart assistants, I don't think it's a good idea. Because when you're speaking with those speakers, your information isn't confidential anymore in that regard, so I have friends that they make sure their workspace if they don't have those speakers around.
Honorable Justice Tanya R. Kennedy 33:46
Mm-hmm.
Debbie Reynolds 33:47
Yeah. So if it was your, so Justice Kennedy, if it was the world, according to you, we did everything that you said, what would be your wish for privacy, either in New York and the US around the world? Like what would you want people to know about privacy? What will be your wish?
Honorable Justice Tanya R. Kennedy 34:10
What would be my wish? You know, technology really is our friend. But it can also be our foe. And I've alluded to this before, just my issue that really, there is no more privacy. And I wish that things could go back to a certain point in time when we didn't have these concerns. But you know, I know that that is really unrealistic. So I think I'll answer it this way. It's all about knowledge because what do they say? Knowledge is power. And so it's important that we all educate ourselves so that we can, you know, have the power as it relates to avoiding data breaches and the like. So that's, that's my answer. And that we all have to work together to educate ourselves and each other.
Debbie Reynolds 35:29
Yeah, I agree with that. Education is key; you know, technology is not going away. It's not stopping. It's becoming more advanced. So the more we are educated, the better I think we can all be. I don't know. I think one thing that I missed that I think people don't have now that we had growing up was anonymity. I missed that.
Honorable Justice Tanya R. Kennedy 35:50
You can wish to go back, but it's not going to happen. We're on the same page, Debbie, but it's not happening. So I'm thinking, okay, this is here to say, then what education education is power.
Debbie Reynolds 36:09
I agree. I agree with that. I agree wholeheartedly. Well, thank you so much, Justice Kennedy. It was such an honor to have you on the show. And you're such a delight to speak with. And I love to hear you speak about almost anything. So I'm happy to have you on the call anytime.
Honorable Justice Tanya R. Kennedy 36:28
Well, thank you. And let me say, once again, I was so honored. I've enjoyed this time. I told you, I'm coming to Chicago, and we must meet in person. And you have to let me know when you're coming to New York. Now I'll tell you judges and not biased, but I'm biased about two things. One is my high school. I told you New York is the best place. But there are a lot of close seconds. And one of those close seconds is Chicago.
Debbie Reynolds 37:00
Absolutely. Absolutely. I'd love to meet you in New York and see you as that would be amazing. Oh, it's been wonderful. Well, thank you so much, and we'll talk again soon. Wonderful. I'm looking forward to that. Thank you.