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the Basics of Forensic Examination

The ability of a smartphone to broadcast its location, and inferentially the location of its owner, is of great interest to prosecutors and regularly used to build a case against a criminal defendant, including defeating an alibi defense.27 But location-revealing operations of smartphones can have important consequences in civil litigation as a well. That evidence may be found not just in the GPS data recorded on the phone but also in network communications that register the phone (or ping it) when it is within the network and connecting to cell towers.28 This latter category of digital data, known as historical cell site location information (“CSLI”), is recorded (if at all) on the network; it is not recorded on the phone. Between GPS data on the phone and CSLI data potentially available from the carrier, the data can place a phone (and its owner) in specific physical locations at specific times.

A competent lawyer needs to recognize the potential treasure trove of relevant information that mobile digital devices contain and to take steps to specifically request discovery of mobile devices and to preserve the digital information that is stored on them. Early requests for such information—and directives to preserve such evidence—are essential given the risk of files being overwritten or deleted or altered by normal operation of the device (as discussed below), not to mention the risk that users will upgrade their device to catch the latest technology improvements with the result that the old phone goes back to the carrier and is wiped clean or destroyed. The lifespan of a smartphone may end before a lawsuit starts.