As 2017 came to an end, Netflix released their much awaited fourth season of “Black Mirror,” a poignant science-fiction anthology series focusing on the way in which near-future technological advances could adversely affect our lives in unexpected but plausible ways. (Fortunately, the series has not had an episode about how spellcheck has led to a generation of people who cannot spell, because some subjects are just too real, and too hurtful.)
Episodes tend to explore deeper societal issues in the context of those future technologies. And, as with any great science fiction series, like “The Twilight Zone” (the original one) or “Outer Limits” (the more recent version) before it, the science-fiction elements serve as plot devices to explore our own psychology, social structures and humanity. The series, then, is a mirror on ourselves. (Get it?).
This fourth season, in particular, served as a thought-provoking consideration of legal questions we will almost inevitably face in the near or not-so-near future. From what legal rights should be afforded to sentient, computer-generated or other non-physical digital beings to the furthest reaches of the child-safety-versus-personal-privacy balances, the season touched on a number of interesting legal concepts from a non-legal perspective.
What I found most fascinating, however, was the concept explored in episode 3, “Crocodile.” While the episode was my least favorite of the season, if not the series, for reasons that should not be explored on a law blog and cannot be adequately explained without spoilers, the technological element of the episode had the most remarkable, looming legal implications.
Central to the episode was a memory-reading device. The device, which according to the episode was previously used solely by law enforcement but since decommissioned for use in a broader range of investigatory purposes, allowed the technician to see and hear memories being currently thought of by the examinee. The images would be displayed on a screen and the sound was listened to with headphones.
One of the main characters, an insurance investigator tasked with determining liability for a car accident with a pedestrian, uses the device to look and listen to the memories of all known witnesses. Notable for anyone who has had to deal with various eyewitnesses or with a curiosity as to the psychology of memories, the episode even makes reference to some of the frailties of the human mind and that manner in which events can be misremembered.
Invariably, while not directly addressed with the episode, such a technology would have incredible legal implications. On the one hand, such a procedure would remove the subjectivity of a trial, both from a witness conveying what he or she saw in a way that may not perfectly depict the memory, and from a juror who is tasked with accurately understanding what the witness is explaining. Our trial system is the greatest in the world but simultaneously is deeply flawed because of the human element stacked on top of the human element, a telephone game of justice.
In watching “Crocodile,” I could not help but consider the concept of people being used like closed-circuit cameras to depict events to eventually be used against their will, or more notably the impacts such technology would have on the rights of a suspect as guaranteed by the Fifth Amendment. Just as the taking a suspect’s breath or blood in a driving under the influence case, or mandating a DNA test or line-up have not seemed to implicate the Fifth Amendment, would a court find an exploration of one’s mind is not compelling one to be a witness against him or herself? Would the increased accuracy from memory-based information lean the court against abolishing the process?
Unfortunately, these questions are not directly addressed, but certainly they are areas we as a country will have to one day explore.