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  • Supreme Court Holds Installation of a GPS Monitoring Device is a Search

    U.S. v. Jones, No. 10–1259, 565 U. S. ____ (2012). 

    Although more of a privacy rights issue than an e-discovery one, on January 23, 2012 the Supreme Court released its opinion in U.S. v. Jones, which may eventually have some far reaching applications in the realm of e-discovery and more specifically, the electronically stored information (“ESI”) used to track cell phones.

    This case surrounds the issue of using information from a cellular-based global positioning system (“GPS”) tracker after the warrant to install the device had expired.  In 2005 federal agents received a warrant that permitted them to affix a GPS device to the underside of the defendant’s wife’s car, which allowed them to collect ESI of the car’s whereabouts for a month.  After the warrant for the device had expired and in a different state than the warrant permitted, the federal agents criminally prosecuted the defendant for cocaine distribution and conspiracy charges.  Jones was subsequently convicted after trial and appealed to the D.C. Circuit, which found the warrantless surveillance to be a Fourth Amendment violation.

    In an opinion by Justice Scalia, the Supreme Court affirmed the decision of the U.S. Court of Appeals for the D.C. Circuit, but did not agree with their rationale.  Rather, and in spite of what some of the coverage from news sites have concluded, the only issue that the Court decided whether attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constituted a search under the Fourth Amendment. In doing so, the Justices unanimously agreed that it does. Unfortunately, the majority opinion did not rule on whether long-term monitoring of a GPS device violates a reasonable expectation of privacy, nor whether the installation of the GPS device required a warrant.

    So, how does this apply in the land of e-discovery? Although the opinion does not specifically address discovery, and more specifically, the discovery involved in collecting, storing, or producing cell-phone information, the opinion does note — albeit briefly while discussing the trespass issue of installing the device — the electronic transmissions involved with sending such data. And that is where we come in, so let’s take a quick look at how GPS signals are transmitted. Without getting overly technical, a GPS system requires both GPS satellites and GPS receivers.  The GPS satellites send a signal to a GPS receiver in the form of code division multiple access (CDMA), which allows the receiver to recognize signals from multiple satellites on the same frequency. The satellites transmit the exact time the signals are sent, and then the receiver calculates its position by subtracting the time the signal was transmitted from when it was received. The more signals from the satellites the receiver obtains the more accurate it can calculate its position.

    Most of the GPS data can be preserved either for general archiving or for e-discovery purposes.  This presents more questions surrounding the logistics of archiving this type of data and producing it to opposing counsel, such as how the data is produced (e.g. native format of the database); what is produced (e.g. position coordinates); and even some far reaching metadata questions (e.g. can you request an image of the device’s hard drive to see its metadata?).  Fortunately, for e-discovery practitioners, the relevance of this sort of information is just starting to unfold and this is just the beginning of the questions.  The world of e-discovery has seen a lot of changes over the past two decades and will continue to adapt to new technologies, including GPS signals.

    A special thanks to Sean Gajewski for helping with this post.  Sean is a third-year law student at Hofstra University School of Law.  You can reach him by email at srgajewski [at] gmail dot com. Bio: www.sgajewski.com.