Ad Age recently posted an article addressing the meteoric rise and overwhelming dominance of the smartphone. At the end of this holiday season, over 50 percent of mobile phone users will be using a smartphone. A year from now, that figure is projected to almost double, to 90 percent of mobile users. Moreover, smartphone capabilities are growing almost as fast as their market saturation. I regularly use my phone as a search tool, GPS, communications device (most of which centers on e-mail) and social hub, and I do not consider myself to be a “power user.” Despite the amazing smartphone developments of the past 5 years, there are more on the horizon. If the experts are right, we will soon be using our phones in place of our wallets, for identification and point of sale purchases. Phones could be used to unlock and start our cars and to open our garage doors and set our home thermostats. This week, conference attendees will be using the DRI smartphone App to keep track of their schedule and contact other attendees. However, like most any “smart” device, the more we use our phones the more data we generate regarding our whereabouts, activities and lifestyles.
Attorneys used to subpoena cell phone records to see if litigants were on their phones at the time of an injury or during an auto accident. Already, Historical Cellular Reconstruction (HCR) can be used to provide the history of a phone’s probable location, regardless of whether a user was actually on their phone. HCR is not based on GPS data, but upon data and information maintained by the cellular provider related to a particular cell phone’s connection to a given cell tower. Although HCR does not result in pinpoint precision, it can often place a phone within a very small vicinity. If a user’s cell phone is turned on and the GPS is in operation, the precision increases dramatically.
Now attorneys look for information and material addressing whether a litigant was texting, surfing the web, on Facebook or taking one of virtually countless actions on their cell phones during the time of a given event, or in the hours and days leading up to a significant event. Lawyers can use cell phone records to compare the location of a litigant to their claimed location. This is particularly relevant where litigants, such as commercial drivers, are required to routinely log their position. Records may indicate that an allegedly injured party went to an amusement park, or that an allegedly incapacitated person made a purchase. The possibilities already seem endless, and as smartphone services continue to expand, so will the potential for using the resulting data in litigation. As more and more opportunities are created by smartphone data, attorneys need to remain mindful of the fact that there may be data available that will impact their case.