Are data analytics considered products for the purpose of liability
lawsuits, or speech cloaked with the protections of the First Amendment?
Richard Beaulieu and associate
Davis Walsh explored the issue in a July 17 Law360 “Expert Analysis”
In the Information Age, data analysis drives most every commercial endeavor
— enterprises as different as real estate, airlines and professional
baseball — with estimates that more than $203 billion worth of data and
analysis tools will be sold in 2020.
A U.S. District Court in New Jersey ruled recently that data analysis
supporting a public safety assessment was speech, not a product. The
analysis was used to support releasing a defendant pretrial and the
defendant allegedly then committed murder. Because the analysis was deemed
speech and not a product, the mother of the slain man could not sue under
the New Jersey Products Liability Act, the court held.
The judge “held that the results of data analysis are more like the ideas
in a book than an intangible ‘product’ like electricity,” Walsh and
Beaulieu wrote. “This holding seems to fit awkwardly in a modern world that
runs on data analysis no less than it runs on electricity.”
They noted that the ruling “raises more legal questions than it answers.”
For instance, they said, is a company that sells custom data analytics
products selling a product or a service, or is it constitutionally
protected speech? The same question applies to companies that market
off-the-shelf analytical tools.