New technology generates even more information

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The use, in both civil and criminal litigation, of information generated by new technology is nothing new. As far back as 1928, the U.S. Supreme Court was considering the Fourth Amendment implications of wiretapping. Today, however, with the technological advances of the last 10 years in particular, there is a huge trove of personal information out there that is potentially very valuable to an investigating officer. Indeed, it is also potentially very useful to parties in civil litigation and this post will focus on some of the different kinds of information generated by technology that may be subject to discovery in a civil suit.

GPS Technology
The Global Positioning System (GPS) was originally designed by the Department of Defense for use by the U.S. military and provides continuous positioning and timing information to users. The receiver determines its location, speed and time by measuring distances to at least four satellites simultaneously while also synchronizing its clock with the GPS time standard. The use of a GPS device to track the movements of a suspected drug dealer, in a criminal investigation, received some attention after the U.S. Supreme Court’s decision in U.S. v Jones.

GPS technology, however, is now included in most cell phones sold in the US and basically all smartphones. This opens the door to use of such records in civil cases. Once a party’s location at a particular time becomes a relevant issue in a case, the opposing counsel can then seek discovery of the information regarding the party’s location at the relevant time generated by their cell phone. Additionally, GPS technology is also becoming more and more accurate, with most phone handsets now capable of being tracked to within a few yards.

Other Location-Tracking Technology
There are numerous other records of a person’s location potentially generated by that person’s cell phone. Although, it is much less accurate than GPS, cell towers constantly send signals to and from nearby phones and the data also provides an indication of the general area (or “cell”) in which the phone is and could be a useful tool in civil litigation.

However, there are still various other records of a person’s location generated by cell phones, tablets, laptops and other computers through connecting to Wifi hotspots, downloading apps that offer location-based services and taking photos on phone cameras with GPS technology that embeds the photos with information on the place it was taken.

Other Data Stored on ‘Computers’
Of course there is still a wealth of information stored on cell phones, tablets etc. that is potentially relevant in civil litigation. In United States v Flores-Lopez, a 7th Circuit opinion handed down this month, the court allowed the warrantless search of a suspect’s cell phone when it was limited to obtaining the phone’s number. The number was then used to subpoena the suspect’s call records. While merely seeking discovery of cellphone call records is nothing new, there is obviously a lot more information stored, generated and potentially made available for discovery by cell phones today. Judge Richard Posner’s opinion in Flores-Lopez acknowledges this when it says “a modern cellphone is a computer”.

With new technology appearing so frequently now, for instance a bigger, better iPad is out this week, there will be a significant expansion on how searches are conducted and the trail of information one unwittingly leaves behind, and the quick accessibility of that information.


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