March 01, 2015

iWITNESS: Thermostats That Testify—Who Knew?

Digital devices mean new data is available in discovery.

Frank Sommers

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Instead of the usual carping about how we’ve lost all our privacy, let’s talk about all of the new data available to the knowledgeable litigator in discovery as a result of this very same loss. I’m going to limit it to data that allow you to physically track someone’s whereabouts—an electronic private investigator, as it were.

First, let me paraphrase a newspaper item that caught my eye several years ago: A Contra Costa police detective moonlighting as a private investigator was found to have been offering his clients (women seeking a divorce) a service whereby he would tag the client’s husband’s car with a GPS locator system. As you might expect, the primary attraction of this service for the women was to enable them to catch their husbands at home with a mistress.

Is this fair game in private litigation? When the issue was presented to the U.S. Supreme Court in United States v. Jones, the Court held that police use of such a tracking device without a valid warrant violates the Fourth Amendment. See 132 S. Ct. 945, 949 (2012). For private litigants, however, such tactics are mostly unregulated, though several states, including New York and California, are moving to make it illegal. The general rule is, once your opponent is in public, he or she loses any reasonable expectation of privacy that might otherwise shield him or her from being observed in public. If you can physically follow someone, you can track that person electronically.

Sticking a GPS unit to someone’s car, however, is by no means the only way to track its whereabouts and route. Many cities and police departments now use automatic license plate readers (ALPRs), which pick up every license plate on every car driving through designated areas, or even entire cities, and then run computer matches of those plates against, for example, lists of stolen cars. Police are also starting to install single units in police cars, and they merrily scan vehicles passed, then alert the officer when a match to a “vehicle of interest” comes up.

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