Technology has turned into a lawyer’s best friend — or worst nightmare — as new forms of electronic evidence are popping up in courtrooms nationwide, giving litigators more access to personal data than ever before.

Criminal and civil attorneys alike say that in recent years they have tapped into new sources of electronic data — from cellular towers, electronic toll booths and auto-location tracking devices — that make it easier to prosecute crimes and support claims.

But others warn that the increasing use of such data for surveillance — something consumers are largely unaware of — gives rise to serious privacy concerns.

Information from cellular towers, for example, is being used to track down kidnapping and murder suspects. E-ZPass and other tollbooth records are being subpoenaed by divorce attorneys to catch cheating spouses, or prove a parent isn’t around enough in a custody case. Data from tiny black boxes that monitor a car’s movements are being subpoenaed by insurance companies investigating accident claims. And state agencies are using new high-tech software to catch tax scofflaws.

Many lawyers say it’s a fact: Technology is invading the legal world. But it’s a welcome invasion, they say, and few are resisting.

"You have to be on top of all the ways to get information that you need to help your client prove a case. That’s what good litigators do. And that’s why if technology is available to you, you take advantage of it," said Lynne Gold-Bikin, a Philadelphia divorce lawyer and author of "Divorce Trial Manual."

But privacy advocates are wary of these "gotcha" technologies, arguing they reek of "Big Brother" and are another sign that people are increasingly being monitored and recorded.

"The big problem is that all of these technologies are being used to create a surveillance society," said Barry Steinhardt, director of the Technology and Liberty Program at the American Civil Liberties Union. "Even as we’re creating this surveillance monster in our midst, we are not creating the chains for the monster, which is law."

‘TRAVEL AND BEWARE’

Chicago divorce attorney David Levy calls tollbooth records "hidden gems." He knows many lawyers who use them in marriage disputes, and has occasionally subpoenaed such records himself.

"It does help you catch people in lies," said Levy, of the Chicago divorce firm Kalcheim Schatz & Berger.

Levy is not alone in his tactics. New York attorney Jacalyn Barnett also digs up information on spouses from E-ZPass records.

"It’s really to prove their lack of credibility," Barnett said. "I think technology is going to become more and more important in the same way that DNA has become important in criminal cases. The more precise the technology, the more precise the conclusion."

According to Gold-Bikin, former chair of the American Bar Association’s Section of Family Law, a growing number of lawyers are subpoenaing E-ZPass records. She did not have numbers, but said the subject came up at a recent ABA-sponsored hot-topic program.

"We talk about it all our meetings. The information is out there if you need it," Gold-Bikin said.

She said E-ZPass records are also making their way into custody disputes.

"When a guy says, ‘Oh, I’m home every day at five and I have dinner with my kids every single night,’ you subpoena his E-ZPass and you find out he’s crossing that bridge every night at 8:30. Oops!" Gold-Bikin said.

As far as privacy rights go, Gold-Bikin said, "Once you get into a custody or divorce case, there ain’t no privacy."

Barbara Handschu, president-elect of the American Academy of Matrimonial Lawyers, agrees.

"I don’t think it’s a privacy right. I say, ‘Travel and beware,’" she said.

According to the New York Thruway System, the number of subpoenas for E-ZPass records nearly doubled in the last year, from 128 to 251. Of those, about half were honored. The state agency did not provide details about the requests.

The Illinois Tollway Authority reported just 20 subpoenas for I-Pass records since 2000. Among these are a man who is fighting for custody of his son who used I-Pass records to prove his ex-wife was never home; a Cook County judge whose I-Pass records were subpoenaed as part of a misconduct probe; and an I-Pass subpoena by the DuPage County State’s Attorney’s Office, which is investigating a man accused of stealing $10,000 from his employer on Christmas Eve.

CELL TOWERS

Cell towers may be an eyesore for some, but police and lawyers say data from them provide a new investigative tool that helps solve serious crimes.

In the last year, cellular towers have led to the capture of a kidnapping suspect in Wisconsin, a murder suspect in North Dakota and another murder suspect wanted in Atlanta and caught in Milwaukee.

Cell tower data also played a role in a pending death penalty case in Georgia and a serial-killer investigation in Louisiana.

"It’s another tool that law enforcement is beginning to use that we’re finding uses for," said Ed Wall, special agent with the Wisconsin Department of Justice, who assisted in the Wisconsin kidnapping case.

Cellular providers declined to make available statistics on how often they are subpoenaed for help in criminal matters. Cingular Wireless, Sprint and Verizon Wireless all declined to comment.

Chicago-based U.S. Cellular reported a 70 percent increase in requests from law enforcement in the last nine months, but would not release actual numbers.

In Wisconsin, authorities used cell tower data for the first time this year to help find a kidnapping victim, and arrest her husband.

Police used cellular towers to locate a woman who alleged that her husband duct-taped her, locked her in a barrel and dumped her off at a storage unit in Illinois. The woman had her cell phone during the ordeal, leading to her discovery and her husband’s arrest. The husband, David Larsen, faces kidnapping and attempted murder charges.

Larsen’s lawyer, Mark Nielsen, would not comment on the case, but said that while he doesn’t object to using cell towers to track suspects, he’s concerned about the impact of technology has on litigation.

"All these new technologies are invading the idea of privacy and autonomy," said Nielsen, of Schwartz Tofte & Nielsen in Racine, Wis. "I am very concerned about the way that technology is interacting with the traditional means of legal analysis."

He said further: "In five to 10 years, I expect to start seeing probation agents and jails replaced by microchips. Just put a microchip in a guy’s neck and you can keep track of him 24 hours a day. Maybe that’s not a bad idea, but it’s one step closer to a lot of other things."

Attorney Robert Hoy, who represents a murder suspect tracked down in North Dakota with the aid of cell tower data, expressed similar concerns.

"I think that technology has its role and is able to do things today that we couldn’t do 10 to 20 years ago. On the other hand, I think, occasionally, law enforcement tends to rely on it too heavily," said Hoy, of Ohnstad Twichell in West Fargo, N.D.

"Technology today will allow the government and law enforcement to do a number of things that our forefathers never contemplated, and would even be shocked at," he said.

Hoy is representing Alfonso Rodriguez on murder and kidnapping charges for allegedly abducting a North Dakota woman from a mall in November. The woman’s body was found in April in Minnesota. Cell tower data linked Rodriguez to the missing woman.

Rick Brown, an assistant Grand Forks County state’s attorney who is handling state charges, said cell tower data were helpful in terms of focusing on Rodriguez as a suspect.

"If they’d had that [cell phone] signal from 60 miles west of Grand Forks, that particular defendant may not have had so much attention placed on him early," Brown said.

Michael Nieskes, deputy district attorney for Racine County, Wis., who is prosecuting Larsen’s case, said cell tower data didn’t make his case — they just "made it happen a little quicker."

Nieskes said he doubts a jury will have a hard time understanding how cellular technology led to Larsen’s arrest.

"Now so many people have cell phones. They see cell towers all over and they understand that if you’re between two cell towers they’ll pick you up," said Nieskes. "In the long run it’s going to be used more and more as police find more ways to use it in terms of investigations."

In Maryland, cell tower evidence and E-ZPass data helped police investigate the high-profile murder of Assistant U.S. Attorney Jonathan Luna, whose body was found last December in a shallow creek in Lancaster County, Pa.

Police said he was stabbed 36 times.

While a suspect has not been caught yet, police
said cell tower data and Luna’s E-ZPass information left an electronic record for them to investigate and rule out possible scenarios.

"I’m not saying we’re all cybercops, but we all live in a cyberworld now, and lawyers are really trying to keep up just as much as law enforcement is," said Pennsylvania State Police Captain Steven McDaniel, who worked on the Luna case.

And in a double-homicide case, federal agents tracked suspect Stacey Ian Humphreys electronically by locating his cell phone as he drove from Atlanta to the Milwaukee area, where he was arrested.

Harold J. Krent, dean and professor at Chicago-Kent College of Law who has been monitoring the use of electronic evidence, said he’s concerned by the lack of knowledge on the part of consumers who are creating electronic records of their daily lives without even knowing it.

For example, he said, consumers are buying cars that have tiny black boxes attached to them that record critical movements after an event. He said that these data are turning up in court records as lawyers representing insurance companies are subpoenaing them to investigate accidents.

He likewise stresses the need for consumers to know the pros and cons of making electronic records when they use programs like E-ZPass or automobile navigational systems.

"Shouldn’t consumers have a right to know?" he said. And he calls for new criteria for when electronic evidence should be used.

Right now, he said, it’s a free-for-all.

SOURCE: Law.com