Location Based Electronic Discovery in Criminal and Civil Litigation - Part 1
| Jurisdiction | United States,Federal |
| Citation | Vol. 24 No. 5 Pg. 5 |
| Pages | 5 |
| Publication year | 2011 |
Vol. 24, No. 5. Location Based Electronic Discovery in Criminal and Civil Litigation - Part 1
Volume 24 No. 5
Sep/Oct 2011
2010 was the year that geolocation technologies such as mobile social networks and check-ins exploded into general use and awareness in the United States. In the final quarter of 2010, more mobile phones (approximately 100 million) were sold worldwide than PCs (approximately ninety-two million) for the first time. See Dylan McGrath, IDC: Smartphones Out Shipped PCs in Q4 (Feb. 9, 2011, 7:05 PM), http://www.eetimes.com/electronics-news/4213010/IDC--SmartPhones-out-shipped-PCs-in-Q4. This article examines the impact of location technology upon civil and criminal legal processes in the United States, in two successive parts: This Part I summarizes the location based digital technology that has recently become ubiquitous and readily accessible. Part II explores the important legal and ethical issues that this technology raises for civil and criminal judicial proceedings.
Part 1: Location Based Technology
Four major developments in geo-technology and the way people use that technology portends a new world of location based electronic discovery ("LBED") in civil and criminal litigation.
The first is that phones have become computers, and computers have become so small, powerful, cheap, robust, and connected - in short, so mobile - that most Americans now carry one in their purse or pocket. The second is the convergence of many location technologies that, when combined, create and store location metadata (off-screen data that makes the on-screen data work) that is becoming ever more accurate, accessible, and continuous.
The third development arises from the first two: location based services and applications ("apps") are changing the American business and social landscape as much as any development since the advent of automobiles and highways. Because of its ability to identify and persuade prime, segregated potential customers, location based marketing is grabbing a sharply increasing percentage of companies' advertising budgets. The fourth is that these devices and the companies, servers, and networks that support them record a flood of information that can be recovered for investigations and litigation.
Apple, Facebook, Google, and Twitter are leading the way, but a host of ingenious apps providers such as Groupon and Foursquare are adding to the location craze. Social networks on mobile devices have added dazzling (or scary) real-time location features.
A growing percentage of cell phone cameras and even camera cameras embed The Global Positioning System ("GPS") location data in photos and videos that end up on Flickr, YouTube, and elsewhere on the Internet. Such devices relentlessly, silently, gather a person's time-stamped locations with such precision that sometimes that individual's speed and direction can be calculated, and record the location data on drives up to sixty-four gigabytes that keep the data for months or longer, even after deletion.
Every indication is that we have seen only the beginning of these important services and technologies. Still, surveys indicate that most people fail to appreciate how much, how persistent, and how revealing the location information is that they generate. People also fail to realize how important - whether helpful or harmful - that information is likely to be in litigation. Or they are simply willing to sacrifice some privacy for the siren benefits of mobile connectedness.
The location technology that constellated in 2010 will make location, location, and location more important in civil litigation and criminal prosecutions than ever before. Subjective location data, i.e., what people say about their location, such as when a person sends a text message that the individual is at a certain Starbucks - will continue to be important. But the importance of objective location metadata - what a device says about its own location - is growing with each new technology that frees a device to roam tethered only by electrons and leaving only digital footprints.
Overview of the New Location Technology Landscape
An increasing percentage of cell phones are "smart" devices for...
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