With a client, a juvenile, sitting in the can, Rick Horowitz found himself in a quandary.
You can imagine my surprise, then, when I was retained to defend a juvenile, and the District Attorney told me that I needed to log on to Evidence.com to download discovery.
And neither Evidence.com, nor Axon—not even in its prior incarnation as “Taser International,” for that matter—are listed in WIC 827 as lawfully able to receive, or disseminate, juvenile records. No corporation is.
The prosecution has discovered the internet, and it’s not by accident. The nice folks over at Taser, seeking to expand their product line of tech items to a decidedly not tech-adept crowd, figured out that one of the areas where the “trust” they developed with law enforcement, and by extension, prosecutors, could be exploited was cloud storage and delivery.
Once Taser sells the prosecution on its cool internet product, it leaves the defense lawyer with an interesting choice. Acquiesce or let your kid sit.
But in the case of Evidence.com, such access does come from Axon. In fact, I have so far been prevented from obtaining the discovery in my juvenile case. Why? Because I refused to sign the license agreement with Axon to obtain access to their—not the city, county, or city and county’s, but Axon’s—website.
If you don’t agree to live by Taser’s EULA, you don’t get discovery. No, there is no law that says so, and you won’t find Taser mentioned in the Sixth Amendment, but when the prosecution has embraced them, you don’t get much choice but to agree with this.
You consent to Axon’s access and use of the Account Content in order to….improve Axon’s Products and Services. In addition, for content that is covered by intellectual property rights, like photos and videos (“IP Content”), you specifically give us the following permission: you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License).
To which Rick responds, “Wow.” You don’t have to agree with Taser’s terms of service. You can refuse. And your client will sit in jail while you argue the point with a prosecutor who really couldn’t care less, and a judge who really couldn’t grasp why this is a problem at all.
If you want discovery, just agree and stop wasting the Court’s time, counselor.
With a child’s life at stake, what’s a lawyer to do? After all, they keep telling us how technology is the future, and the future is here now. It’s owned by Taser.