Black Mirror provides an excellent look at the possibilities of not-too-far-off technologies. Fortunately, while the technologies featured in the show seem all-too-real, the laws guiding the use of these technological advances are pretty unrealistic -at least in America for the time being. While there are a lot of legal issues in Black Mirror that could provide fascinating analysis material for a criminal attorney, today we’re choosing to focus on those involving the ability to view other people’s experiences through their point of view as seen in “The Entire History of You,” “Arkangel” and “Crocodile,” all of which explore the concept in a different way.
Legal Issues in Black Mirror: The Entire History of You
This episode (see the trailer above) features technology known as a “grain” that is implanted in the eyes and allows you to record and playback all of your encounters so you no longer have to rely on your potentially faulty memories. In the show this results in serious problems when the main character starts to believe that his wife is cheating on him, but it would also raise some very serious legal questions.
If we all had video recordings from our own bodies, there would be some major issues when it comes to letting police view such recordings in order to solve crimes.Fortunately, due to the constitutional protections against self incrimination, you probably wouldn’t be forced to show your grains relating to a crime that you were under investigation for. Your spouse, therapist, lawyer and priest would also be protected from having to share their grains with the police due to the current protections for these groups of people. On the downsides, those protections don’t apply to witnesses, who would no doubt be regularly forced to reveal what they saw, even if they didn’t want to, making this one of the many uncomfortable and creepy legal issues in Black Mirror.
Police would definitely need a warrant to view someone’s grain, although just like now, someone would be able to waive those rights by willingly providing the police a look at it. No doubt many people would unwillingly waive their right to show that footage to the police due to some of the many clever tactics police already use to avoid needing to get a warrant. If everyone had these implants, it would be even more important than it is now to have a criminal lawyer with you when speaking to the police in order to not unintentionally yield your constitutional protections against unreasonable search and seizure.
Legal Issues in Black Mirror: Arkangel
This episode takes the concept of helicopter parenting to a whole new level through the use of implants parents put in their children’s heads that allow them to see what their children see, stop the children from seeing or hearing potentially violent or upsetting images and sounds, and monitor the child’s location and health. While the government has largely upheld the rights of parents to raise their children any way they see fit, there are absolutely restrictions when it comes to the health and welfare of the child, which is why parents can be charged not only for neglect and abuse, but even for denying their children necessary medical care.
While components of the Arkangel program would be legal, such as monitoring your child’s location and health statistics, blocking upsetting images and sounds and allowing parents to see everything their child sees both present some serious legal issues in this Black Mirror episode -meaning both aspects would most likely be illegal.
Although the government has upheld a parent’s right to protect their child from obscenity, the way that the Arkangel system blocks everything that raises the child’s cortisol levels could put the child in serious danger if he or she cannot see a real threat. It’s one thing to block guns in movies and a whole different matter to stop children from seeing a gun in front of them. Additionally, not allowing a child to see or hear anything remotely upsetting could result in some serious psychological problems as the episode demonstrates later on. If the system could manage to block upsetting features in movies, television, video games and other media without obstructing real-world threats though, this still might be legal.
Similarly, seeing the world through the eyes of your child would probably be mostly legal until they turn 18. But Arkangel would need some serious content filters on the parent’s side of the app to block out obscene images the child might see both in the mirror or when having sexual encounters as a teenager. As the episode reveals, it would be incredibly easy for a parent to inadvertently record child porn when seeing what their child sees. And as we’ve previously discussed before, teens can still get in trouble for making pornographic recordings for other teens, so there is no way it would be ok for their parents to make or view recordings featuring child pornography.
Legal Issues in Black Mirror: Crocodile
While the grains of “The Entire History of You” allow for perfect recordings of events a person has undergone without letting the memory distort what happened, the Recaller device used in Crocodile makes a person’s memories of an event visible by another party. This would make it subject to many of the same laws as the grains, but it would be more unreliable, just like our actual memories. That means that evidence from the Recaller would be a lot easier for a defense attorney to challenge as it would not necessarily be accurate.
One other thing to note with the Recaller is that while the laws in the fictional future version of Iceland require someone to submit to using the device even for an insurance investigation, this would absolutely not be legal under the American legal system.
Of course, all of these technologies are still fictional for the time being, but new technologies emerge every day that test the boundaries of our current laws. This is why exploring the legal issues in Black Mirror can provide insight to how laws may affect future technologies. If you have a question about a piece of technology and how it may affect your rights, a criminal defense lawyer can help. Please call (760) 643-4050 to schedule a free initial consultation with Peter M. Liss.