Brief Says Don’t Treat RAM as “Stored Information”

CDT joined EFF and Public Knowledge in a legal brief yesterday arguing that data that is fleetingly held in RAM shouldn’t be subject to discovery, the process by which parties to litigation can demand access to records and documents. Sound arcane? Maybe. But the principle is actually pretty simple.

Litigants have to share relevant records with each other. These days, many records are electronic. So in 2006, the rules of civil procedure were amended to state specifically that electronically stored information must be shared as well. That’s all well and good, for electronic data that is truly stored — if you have a word processing document stored on your computer, it should of course be subject to discovery just like a paper document stored in a file cabinet.

But digital devices of all kinds have temporary, “random access memory” or “RAM” — essentially, an area of transitory memory for handling data about the tasks the computer, cellphone, PDA, or other device is currently working on. RAM is constantly being overwritten, often holding data only for fractions of a second; if specific data is to be stored for future use, it needs to be saved somewhere else.

Requiring litigants to turn over information that is fleetingly held in RAM would force them to start saving stupendous quantities of data, because the entire moment-to-moment datastream behind the operation digital devices — every keystroke, every click, every image displayed even for an instant — could be fair game for discovery. Discovery can be plenty extensive and burdensome when you’re dealing with analog documents and devices. There’s no basis for radically increasing its scope and burdens just because the world is going digital — especially because doing so would make using digital technology (such as digital video) significantly more burdensome than if one were to use the analog equivalent, as our friends at EFF explain.

Unfortunately, in 2007, a federal court said that RAM data is subject to discovery. That’s the dangerous precedent that EFF, CDT, and PK asked the Court of Appeals to revisit yesterday. Fingers crossed.