On June 27, the Supreme Court granted certiorari in the case of United States v. Jones, a case that will have a far-reaching impact on the scope of data evidence in criminal trials. But beyond its narrower impact on criminal procedure, the Court’s ruling will signal its attitude on key data and evidence issues. When the Court is called upon to answer key ediscovery questions it may turn to many of the same considerations.
The pertinent facts associated with this case include the following: Police installed a GPS tracker on the vehicle of Antoine Jones, a suspected player in a drug-dealing conspiracy, without a valid search warrant. The tracker logged Jones’s continuous movements over the course of a month. At trial, the government introduced the GPS evidence and Jones was convicted.
On appeal to the D.C. Circuit, Jones argued that the Fourth Amendment’s prohibition on unreasonable search and seizure without a warrant based on probable cause barred the government from using the GPS evidence. Following the landmark case Katz v. United States, the Court has held the Fourth Amendment applies when an individual has a reasonable expectation of privacy, even in a public area (Katz was arrested based on the monitoring of a phone call made in a public phone booth). Jones contended he reasonably expected privacy from continuous government monitoring, even on public roads. The government relied on a line of Supreme Court cases holding that an individual’s location on public roads is a public fact, and argued that Jones had no reasonable expectation of privacy claim when he was continually exposing his location to anyone who cared to follow him.
The appellate court sided with Jones and rejected the government’s argument that the “public fact” doctrine of Knotts and Karo controlled, instead focusing on the unique nature of the facts disclosed in a prolonged and continuous GPS search. A human follower can only see so much when tracking a car on public roads because of inherent limitations. But the GPS device can monitor and record everything, thus creating a “mosaic” of facts, the significance of which is greater than the sum of its parts.
Essentially, the court held that a person has no reasonable privacy interest in a single trip to the gas station, or the doctor, or to rendezvous with a cohort. But single facts can add up to a mosaic of facts that are so revealing that an individual has a reasonable interest in keeping them private.
The U.S. Supreme Court has instructed the parties to prepare briefs discussing not only the search issue, but also whether warrantless installation of a GPS device constitutes a Fourth Amendment seizure. The Court will likely focus the seizure issue and the constitutional soundness of the D.C. Circuit’s “mosaic theory.”
But more importantly for ediscovery aficionados, the Court will face tough policy questions on emerging technology and data storage. A persistent theme in ediscovery is “old laws, new technology.” No law is older or more fundamental than the Bill of Rights, and GPS tracking is one of the hottest new trends in law enforcement. This clash between new and old, which underlies many ediscovery rules, will play out in the highest court in the country.
The Court may well decide that new technology is so effective at tracking people that the old Fourth Amendment rules simply cannot apply. Such a practical approach may signal that the Court is willing to be equally pragmatic in ruling on ediscovery regimes and doctrines. A more rigid approach may suggest the opposite. However the Court decides, United States v. Jones should be an exciting case to watch for those who follow ediscovery trends.
 The case arises from the D.C. Circuit, which decided it 2010 (as United States v. Maynard). See http://www.supremecourt.gov/orders/courtorders/062711zor.pdf#page=3 for the order granting cert. For the full opinion of the D.C. Circuit case, see http://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf.
 See Katz v. United States, 389 U.S. 347 (1967).
 See United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984) (agreeing with the Knotts principle of privacy on the roads but distinguishing in cases in which the tracking device enters a private home).
 In a partial concurrence and partial dissent from Karo, Justice Stevens persuasively argued that such installations may constitute a seizure and require Fourth Amendment protection. For a longer discussion of the issue and Justice Stevens’s position, see http://supreme.justia.com/us/468/705/case.html#728 (beginning of Stevens opinion through end of Sec. I).