When Jury Duty Means Surrendering Your Digital Life: Judge Orrick’s LinkedIn Sanction and the Surveillance of American Jurors

“The rules say little about the scope of investigation but instead focus their efforts on defining ‘improper contact’—creating a system where anything goes so long as jurors never find out.”

I. Introduction

In the high-stakes world of courtroom battles, where every detail can tip the scales, a seemingly routine step in trial preparation recently backfired spectacularly. On October 28, 2025, U.S. District Judge William H. Orrick sanctioned a prestigious law firm $10,000 for violating his rules on investigating prospective jurors using social media. The infraction? Using LinkedIn in a way that could notify jurors that their profiles had been viewed—even anonymously.

This happened during jury selection in Contour IP Holding, LLC v. GoPro, Inc., a decade-long patent dispute over action camera technology. While the sanction was modest and the violation inadvertent, Judge Orrick’s order reads like a manifesto on privacy erosion in our data-driven era, warning that future infractions won’t be treated so lightly. SeeContour IP Holding, LLC v. GoPro, Inc., No. 17-cv-04738-WHO, Doc. 895 (N.D. Cal. Oct. 28, 2025) (“Sanctions Order”).

For some, this might sound like inside baseball—a minor fine in a big case. But zooming out, it reveals an urgent question that demands a salient answer. How far can lawyers go when digging into ordinary citizens’ lives when those citizens are summoned for jury duty? In an age where our online footprints (like LinkedIn) are vast and easily traceable, the order hints at a quiet collision of competing constitutional rights that work to ensure impartial juries while simultaneously guarding against unreasonable searches and compelled self-incrimination.

The LinkedIn notification that triggered Judge Orrick’s sanctions is merely the tip of the surveillance iceberg. Today’s attorneys wielding AI tools can construct detailed psychological profiles of prospective jurors from online sources, revealing jurors who frequent gun ranges and those who attend political rallies, identifying jurors who likely face personal or financial crises, and assessing probabilities of their verdict votes through algorithms trained on millions of data points. Meanwhile, citizens summoned for jury duty face an impossible choice. Submit to these investigations and risk exposure of embarrassing personal details or even criminal conduct, or refuse to appear and risk penalties for contempt.

The jury box has become a constitutional dead zone where privacy protections evaporate in the quest for “public” data about prospective jurors, Fifth Amendment rights can be overridden with use immunity, and the very investigations meant to ensure fair trials are driving citizens to avoid jury service altogether. Until comprehensive privacy reform catches up with technology, courts can adopt a disarmingly simple solution to address juror concerns, apply the same use and disposition protections to juror data that are routinely granted to confidential data exchanged by parties in discovery.

II. The Case Behind the Sanction: A Patent Battle Over Action Cameras

To set the scene, the underlying lawsuit isn’t about privacy at all—it’s a patent infringement fight over digital imaging technology. Contour IP Holding sued GoPro back in 2015 (with a follow-up suit in 2021), accusing the action camera giant of infringing its patents on hands-free, point-of-view cameras used in extreme sports. The patents in question—U.S. Patent Nos. 8,890,954 and 8,896,694—cover clever technology that lets users stream low-quality video wirelessly to a phone for real-time previews and controls, while simultaneously recording high-quality footage on the camera itself.

After years of legal wrangling—including a 2020 summary judgment of infringement on older GoPro models and expedited discovery on GoPro’s newer cameras—the case went to a jury trial in October 2025. The jury largely sided with GoPro, finding no infringement on newer models, invalidating certain claims of the patents, and awarding Contour just $8.2 million for the past infringement by the older models—far below the $174 million sought by Contour. It’s a pragmatic win for GoPro after a grueling fight, but the ruling of interest here came from the court’s sidebar sanction against GoPro’s lawyers and their conduct during pre-trial jury selection.

III. The Order: Protecting Privacy or Enabling Surveillance?

Judge Orrick has a standing order that governs the parties’ pre-trial investigation of prospective jurors. See Standing Order Regarding Juror Questionnaires and Social Media Research, William H. Orrick (N.D. Cal. Aug. 23, 2023) (published on the court’s website). In addition to “the standard Jury Questionnaire administered by our Jury Office,” the order permissively allows parties to use “publicly available and private sources that derive their information from publicly available sources . . . to research a prospective juror.” Id.

The standing order contemplates that parties may review the prospective jurors’ online social media information but expressly forbids any contact with the jurors “in any manner, whether through social media, by email, by telephone or messaging platforms (including WhatsApp, Telegram, and the like), by mail, or in person.” Id. The order further specifies that “[c]ontact includes notifying a prospective juror that their social media profile has been viewed by a party, attorney, investigator, etc., even if that notification is inadvertent or provided automatically by the social media site.” Id.

The standing order expressly prohibits the use of LinkedIn because “a prospective juror who is on LinkedIn may be notified of the identity of anyone who uses LinkedIn to view the prospective juror’s profile or other information, or be notified that an ‘anonymous’ person viewed the prospective juror’s profile. . . .” Id. According to the standing order, “Those notifications constitute ‘contact’ with the prospective juror.” Id.

Before trial, GoPro’s counsel hired a jury consultant who used separate investigators to probe public information about the prospective jurors. GoPro’s counsel, nonetheless, neglected to inform the investigators of the court’s standing order. And although the investigators limited their review to “publicly available” information, they accessed the prospective jurors’ LinkedIn profiles in violation of the standing order. Sanctions Order at 2.

Before jury selection, GoPro’s lead counsel disclosed the violation to both the court and opposing counsel. In doing so, lead counsel attempted to limit any harm by disclosing the content of the LinkedIn profile searches to opposing counsel and simultaneously withholding that information from the attorney who would conduct voir dire for GoPro. Id. at 2-3.

Although Judge Orrick praised counsel’s transparency, he sanctioned the attorneys by imposing a $10,000 penalty for violating his standing order. He commented that the sanction “is far more modest than I originally contemplated” because he recognized that LinkedIn’s anonymous profile view notification could “not be traced back to this litigation.” Id. at 3. Judge Orrick commented further that “I may be one of only a few judges who consider automatic notifications on LinkedIn to be juror contact” and that he “appreciate[d] that counsel did her best to rectify the violation by prompt disclosure.” Id.

The judge’s order reveals his deep concern about juror privacy and the challenge courts face in balancing “the quantity and quality of information available in jury selection.” Id. at 1. “I believe strongly in the right to privacy,” he wrote, “Judges instruct jurors that they may not investigate the lawyers, parties, witnesses or issues in the case before them, and I think a concomitant right should preclude lawyers from rummaging around in the lives of prospective jurors.” Id. He expressed particular worry about the erosion of individual privacy over the past thirty years through “surveillance tools, the internet, smart phones, and social media.” Id. at 3.

IV. The Fractured Landscape of Jury Investigation Rules

Judge Orrick is not alone in grappling with these issues, and his LinkedIn-specific prohibition represents merely the latest iteration of the problem courts have failed to coherently address for nearly a decade. The landscape of jury investigation rules is not just fractured—it has devolved into willful blindness, where courts and bar associations have collectively chosen secrecy over transparency and created a system that permits extensive surveillance so long as nobody acknowledges it.

A. The Oracle Warning: A Framework Ignored

In 2016, Judge William Alsup confronted the complexities of digital jury investigation head-on in Oracle America, Inc. v. Google Inc., 172 F. Supp. 3d 1100 (N.D. Cal. 2016). Before him were two Internet giants (one was Google no less) who had requested an extension of time to “scrub Facebook, Twitter, LinkedIn, and other Internet sites to extract personal data on the venire.” Id. at 1101. Noticeably appalled, Judge Alsup appeared to speak for his colleagues on the bench, “Trial judges have such respect for juries—reverential respect would not be too strong to say—that it must pain them to contemplate” attorneys and consultants “scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.” Id.

Judge Alsup emphasized three fundamental problems: (1) the “corrosive effect” of one-sided investigation on juror compliance with no-research rules; (2) the risk of “improper personal appeals” during trial, exploiting discovered information; and (3) the violation of juror privacy. Summing up those concerns, he declared, “The jury is not a fantasy team composed by consultants.” Id. at 1103. His solution was radical transparency, requiring attorneys to disclose their investigation plans to the venire, maintain exact records of all searches, and banning any use of discovered information for personal appeals during trial. Id. at 1104-05.

Yet seven years later, no court has adopted Judge Alsup’s strict disclosure and use restrictions. No bar association mandates or encourages such candor or restraint. The in-trial prohibition on personal appeals has vanished, and jurors need not be informed of the detailed investigations into their personal lives. Even within the same Northern District of California, Judge Orrick’s order in Contour IP Holding makes no mention of these safeguards—he simply bans LinkedIn while permitting investigation of other platforms to proceed in the shadows.

B. The Investigation Imperative: Use It or Lose It

While courts ignored Judge Alsup’s transparency framework, they simultaneously created investigative obligations that trap attorneys between conflicting duties. For example, in Johnson v. McCullough, the Missouri Supreme Court excused a party’s post-verdict discovery of juror misconduct and ordered a new trial—but announced that going forward, such relief would be denied. 306 S.W.3d 551, 558-59 (Mo. 2010) (ruling formalized in Missouri Supreme Court Rule 69.025). The court’s reasoning reflects modern realities. Given “advances in technology allowing greater access to information,” parties must investigate reasonably available online information before the jury is empaneled or forfeit their right to challenge. Id. at 559. Though Johnson specifically addressed Missouri’s online “Case.net” litigation database, its logic extends to any information discoverable through “reasonable efforts” online. The implications are clear. Use technology to investigate prospective jurors or lose your right to complain later. Accord United States v. Daugerdas, 867 F. Supp.2d 445, 476 (S.D.N.Y. 2012) (right to object to juror waived when basis for objection discoverable before jury was empaneled); City of Richmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438, 459 (4th Cir. 1990) (same).

This “use it or lose it” principle transforms what was once optional into mandatory. Parties can no longer “lie in wait” after an adverse verdict to discover juror misconduct that was discoverable before empaneling the jury. As the court in Johnson explained, “litigants should endeavor to prevent retrials by completing an early investigation.” Johnson, 306 S.W.3d at 559. The technological ease of investigation has fundamentally redefined reasonable diligence.

The D.C. Bar pushed this logic even further, declaring that “competent and zealous representation may require investigation of relevant information from social media sites.” D.C. Bar Ethics Op. 371 (2016) (emphasis added). In D.C., at least, this transforms prospective juror investigation from merely prudent to professionally indispensable.

However, a 2014 Federal Judicial Center study found that approximately 26% of federal judges prohibit attorneys from using social media to investigate jurors entirely, while the remaining 74% permit it with varying restrictions. See Jurors’ and Attorneys’ Use of Social

Media During Voir Dire, Trials, and Deliberations, A Report to the Judicial Conference Commission on Court Administration and Case Management (May 1, 2014). This empirical evidence confirms the fractured landscape. Attorneys preparing for trials in multiple jurisdictions face not just different rules but fundamentally incompatible obligations. In some courtrooms, failure to mine social media for bias could constitute ineffective assistance or even malpractice. But exercising such diligence in others could trigger sanctions.

C. The Ethics of Secrecy

The bar associations’ response has been to codify secrecy. The ABA’s Formal Opinion 466 (2014) permits “passive viewing” of social media. State bar ethics opinions have followed suit. See, e.g., Pennsylvania Formal Ethics Op. 2014-300 at 16 (“During jury selection and trial, an attorney may access the public portion of a juror’s social networking website); Oregon Ethic Op. 2103-189 (same).

This consensus around secret surveillance reveals our justice system’s troubling priority—extensive investigation is acceptable so long as jurors are kept in the dark. Yet not everyone is comfortable with this situation. As the Kentucky Supreme Court acknowledged in Sluss v. Commonwealth, “although intensive internet vetting of potential jurors is becoming more commonplace, ‘lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.’” 381 S.W.3d 215, 227 (Ky. 2012) (quoting Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters (Feb. 17, 2011)).

D. The Regulatory Blind Spot

Recent regulatory attention has focused exclusively on preventing discriminatory impacts while ignoring these fundamental contradictions. The ABA’s Formal Opinion 517 (2025) addresses AI bias in jury selection but not whether AI should be creating comprehensive juror dossiers at all. Courts worry about Batson violations from learning a juror’s race through AI, but not about AI knowing the juror’s mental health history, financial struggles, or family dynamics.

The result of all this is an uncertain landscape built on willful blindness, where investigation ranging from mandated to sanctionable depends solely on geography, where Judge Alsup’s prescient warnings about turning jurors into “fantasy teams” have been ignored, and where the legal system has chosen to conduct surveillance in darkness rather than acknowledge it in daylight. Seven years after Oracle, we’ve arrived exactly where Judge Alsup feared—treating jurors as data to be mined while pretending we’re not.

V. The Sobering Logical Extreme

Here’s where the fundamental logic of these rules becomes disturbing. The rules say little about the scope of investigation but instead focus their efforts on defining “improper contact” when investigating. Under this precedent, lawyers can conduct extensive investigations into prospective jurors’ lives and compile comprehensive dossiers—as long as the prospective jurors are none the wiser. Sanctions Order at 2-3. The precedent appears straightforward. Investigate public information all you want, just don’t let the targets of your investigation find out.

Consider what this framework contemplates when taken to its logical extreme. A law firm could hire private investigators to follow potential jurors in public spaces, photographing them, observing their activities, noting their associations—all seemingly acceptable as long as the public surveillance remains undetected. They could station someone outside a juror’s home to monitor comings and goings. They could observe jurors at their workplaces, their gyms, their children’s schools. Under this strict logic, physical surveillance that would feel deeply invasive to most Americans appears permissible so long as it is conducted with sufficient stealth.

To be clear, as off-putting as physical surveillance might sound, all of this is within the realm of ethical conduct. According to the ABA, “In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.” ABA Formal Opinion 466. The ABA draws the line at “stopping the car, getting out, and asking the juror for permission to look inside the juror’s house because the lawyer cannot see enough when just driving past.” Id.

As a practical matter, physical surveillance of prospective jurors is not a realistic threat. Ordinarily, counsel receive jury pool lists only a few hours or days before voir dire. Realistically, there is little time to set up observational stakeouts of the entire jury pool. But there is ample time to engage in far more invasive investigations of prospective jurors—using modern digital tools.

VI. The Data Tsunami

While courts debate whether LinkedIn notifications constitute improper contact, technology races ahead at exponential speed, making available investigative capabilities that would have seemed like science fiction just a decade ago. The tools available today transform “publicly available information” from scattered data points into comprehensive surveillance dossiers that reveal nearly every aspect of a citizen’s life.

A. The Public Records Goldmine

Even before deploying sophisticated technology, attorneys can access extensive public records about potential jurors. Voter registration databases reveal party affiliation and voting frequency. Property records show home values, mortgage amounts, and foreclosure proceedings. Court databases expose criminal histories, lawsuits, and bankruptcy filings—all available through online systems like PACER and state court systems like Case.net. Though much of this information is anonymized in some respects, when combined with other data, juror identities can be ascertained with high degrees of confidence. See Fed. R. Bankr. P. 9037 (allowing last four digits of social security numbers to be included in bankruptcy filings and leaving most other information public).

Professional licensing boards provide employment verification and disciplinary histories. Federal Election Commission databases reveal political donations down to the dollar. County clerks maintain marriage licenses, divorce decrees, and tax liens. Even eviction records, often containing intimate details about financial struggles, remain publicly accessible in most jurisdictions. While the Fair Credit Reporting Act prohibits pulling credit reports for jury selection, 15 U.S.C. § 1681b, bankruptcies, liens, and judgments in public records effectively reveal much of the same information.

B. Social Media and Digital Footprint Pathway

Moving beyond static records, modern jury consultants deploy AI-powered platforms to instantly scour social media and online activity. Companies like Magna Legal Services’ JuryScout conduct automated social media surveillance across platforms, compiling years of posts, comments, and interactions. See Sean La Roque-Doherty, AI Tools Can Help Litigators Pick Jurors Who Might Be on Their Side, ABA J. (Apr. 1, 2023). These systems don’t just collect posts—they analyze language patterns, emoji usage, and posting times to infer personality traits and political leanings. Cf. id. (“you’re looking for the person who talks the most in voir dire or is the most sociable, not necessarily the person with the greatest professional accomplishments”).

Vijilent’s Reveal platform goes further, using natural language processing to identify “hidden biases” from linguistic patterns invisible to human readers. Id. (“web-scraping bots to collect text from social media and websites and then use machine learning and natural language processing tools to analyze all collected data and extract information relevant to prospective jurors and useful in voir dire”). The system claims to detect implicit attitudes about authority, corporations, and personal responsibility by analyzing word choices and sentence structures across thousands of social media posts. What a juror thinks they’re revealing through their Facebook posts and what AI systems can extract from those same posts are vastly different things.

C. Behavioral Prediction and Influence Modeling

The next level of intrusion involves predicting how jurors will behave in deliberations. Momus Analytics uses proprietary algorithms to score and rank jurors based not just on their individual preferences but on their predicted group influence—essentially identifying which jurors will dominate deliberations. Id. (“compiles and analyzes jurors’ preferences and combines them to determine which particular jurors will give an attorney the best chance of winning”). The company claims its system avoids discriminatory factors like race or age while still predicting verdict tendencies with high accuracy.

Companies like JuryPicks simulate voir dire scenarios using survey data and historical patterns to identify which jurors are statistically most likely to favor certain arguments. Id. (“Jurypicks would look at the propensity of a juror—such as a person who has a higher education degree or owns a business—to support a plaintiff or defendant”). These systems don’t just predict individual juror behavior—they model jury dynamics, identifying potentially influential jurors and predicting how different combinations of personalities will interact during deliberations.

D. Network Analysis and Association Mapping

Modern platforms perform network analysis that maps social connections across multiple platforms, identifying relationships that jurors might not even realize exist. These systems can discover that a potential juror is connected through three degrees of separation to a party’s former employee, or that they’re Facebook friends with someone who posted extensively about a similar case.

More troublingly, these tools analyze “guilt by association”—inferring attitudes and beliefs from the company people keep online. If a juror’s Facebook friends or the personalities they follow on X or YouTube predominantly share certain political content, the system might imply the juror shares those views, even if the juror has never expressed them publicly. The algorithm doesn’t care whether these inferences are accurate—only whether they’re statistically probable.

E. Location Intelligence and Movement Patterns

Perhaps most invasive are emerging capabilities around location intelligence. Data brokers like SafeGraph and Placer.ai sell supposedly “anonymized” movement patterns from millions of mobile devices. While these companies claim the data cannot be de-anonymized, attorneys armed with jurors’ home and workplace addresses from jury rolls can potentially identify which device belongs to which juror—researchers have shown that knowing just two locations (home and work) can uniquely identify 95% of individuals in mobility datasets. Once a juror’s device is identified with high confidence, their entire movement history becomes visible.

These platforms could theoretically reveal which jurors regularly attend religious services (and which denominations), who frequents gun ranges versus yoga studios, who shops at Whole Foods versus Walmart, who attended political rallies or protests. A juror’s movement patterns over time create what researchers call a “pattern of life” analysis—revealing daily routines, social connections, and lifestyle choices that even close friends might not know.

F. The Convergence: Psychographic Profiling

At the apex of invasiveness, companies like Jury Analyst integrate all these data streams—demographic, financial, social, behavioral, and locational—into comprehensive psychographic profiles. See Legal AI Tools for Case Preparation, Jury Analyst (Aug. 31, 2025). These platforms don’t just report what they find; they create psychological assessments that claim to predict everything from risk tolerance to respect for authority to susceptibility to emotional appeals.

Darrow AI’s platform identifies patterns across thousands of data points to generate “jury insights” that read like psychological evaluations. See 10 Best AI Tools for Lawyers in 2025, Darrow AI (May 18, 2025). Paxton offers AI-driven juror selection based on demographic and verdict trends, essentially reducing human beings to statistical probabilities. Id. These systems employ machine learning to detect biases from language patterns and correlations that their creators acknowledge cannot fully capture personality or group dynamics—yet they’re statistically robust. La Roque-Doherty, supra.

G. The Unregulated Marketplace

These tools operate in a complete regulatory void. The companies providing them aren’t credit agencies, so FCRA doesn’t apply. They’re not healthcare providers, so HIPAA is irrelevant. They face no restrictions on data retention, no security requirements, no disclosure obligations. They can sell their services to anyone willing to pay—creating a fundamental inequality between well-funded litigants who can afford these tools and those who cannot.

The result is an arms race where the quality of justice increasingly depends on the sophistication of surveillance technology one can afford. A corporation defending a product liability suit might spend hundreds of thousands of dollars on jury analytics. A public defender might have time for a quick Google search. The playing field hasn’t just become uneven—it’s become borderline dystopic.

VII. The Constitutional Penumbra: When Civic Duty Meets Digital Surveillance

Modern jury selection operates in the “constitutional penumbra”—areas without formal constitutional violation but where practical effects mirror constitutional harms. While courts have not recognized direct constitutional violations—largely because private litigants aren’t state actors—the compulsory nature of jury service combined with comprehensive digital surveillance raises quasi-constitutional concerns that deserve serious consideration.

A. The 6th & 7th Amendments’ Imperatives and Their Costs

The Sixth Amendment guarantees criminal defendants the right to an impartial jury, U.S. Const. amend. VI, which courts have interpreted as supporting reasonable investigation into bias. See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“the right to jury trial guarantees . . . a fair trial by a panel of impartial, ‘indifferent’ jurors”). Civil litigants enjoy similar due process and guarantees to an impartial jury under the Seventh Amendment. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (“One touchstone of a fair trial is an impartial trier of fact”). The Supreme Court has repeatedly emphasized this right’s fundamental nature. In Batson v. Kentucky, the Court noted that “[t]he petit jury has occupied a central position in our system of justice by safeguarding a person . . . against the arbitrary exercise of power.” 476 U.S. 79, 86 (1986).

These precedents arose in an era when jury investigation meant courthouse records and neighborhood inquiries. Today’s digital investigations can uncover biases through employment histories, financial ties, and social affiliations with unprecedented depth. Undoubtedly, pretrial investigation of the jury pool plays an essential role in securing the parties’ due process rights. See, e.g., Daugerdas, 867 F. Supp.2d at 445 (post-verdict research revealed juror had lied about personal litigation history and background, demonstrating investigation’s value in protecting trial integrity).

Yet this investigative imperative creates pressure for ever-more-invasive research. In Strickland v. Washington, the Supreme Court established that ineffective assistance of counsel requires showing the attorney’s performance fell below objective standards. 466 U.S. 668, 687-88 (1984). Technologies’ rapid evolution is pushing those standards to new extremes and creating a “race to the bottom” where each side must investigate more invasively to avoid rebuke. See, e.g.,Caren Myers Morrison, Jury 2.0, 62 Hastings L.J. 1579, 1606 (2011) (“Some lawyers are coming to court for jury selection armed with a phalanx of paralegals to run each juror’s name through a variety of social media searches in real time”).

B. The 4th Amendment Paradox: State-Compelled Private Surveillance

The Fourth Amendment protects against unreasonable government searches, U.S. Const. amend. IV, but courts consistently hold it doesn’t restrict private parties. Burdeau v. McDowell, 256 U.S. 465, 475 (1921) (“We assume that petitioner has an unquestionable right of redress against [the private parties] who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned”). Lower courts deem a person’s voluntary online posting unprotected even from government scrutiny. See, e.g., United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) (“When [defendant] posted to his Facebook profile . . . , he did so at his peril”).

Yet jury service presents a unique situation that approaches the constitutional line. Citizens receive court-issued summonses—backed by contempt penalties—compelling their appearance. Once present, they become captive subjects for private investigation. While private attorneys aren’t state actors in the traditional sense, they operate within a state-created framework using state-compelled attendance.

Courts have found state action where private parties exercise government-delegated powers. In Lugar v. Edmondson Oil Co., the Supreme Court held private parties’ conduct amounts to “state action” when exercising rights created by the state and acting as state proxies. 457 U.S. 922, 937 (1982) (“constitutional deprivation is directed against a party whose official character is such as to lend the weight of the State to his decisions”). The Court extended this to jury selection itself in Edmonson v. Leesville Concrete Co., finding private litigants’ peremptory challenges constitute state action. 500 U.S. 614, 621-22 (1991) (“without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist”). If exercising peremptory strikes involves state action, shouldn’t investigating the jurors subject to those strikes raise similar concerns?

The paradox deepens with Carpenter v. United States, where the Supreme Court recognized digital technology requires rethinking Fourth Amendment doctrine, holding that government access to cell phone location data requires a warrant. 138 S. Ct. 2206, 2216-17 (2018). Yet private parties preparing for voir dire can purchase similar location data about jurors without restriction. The result? Criminal suspects receive more privacy protection than law-abiding citizens complying with jury duty.

The potential jeopardy faced by prospective jurors extends beyond privacy invasion. The ABA’s Formal Opinion 466 requires that if attorneys discover “evidence of juror or potential juror misconduct that is criminal or fraudulent,” they “must take reasonable remedial measures including, if necessary, disclosure to the tribunal.” This mandatory reporting duty fundamentally transforms the constitutional analysis. When private attorneys investigating jurors become obligated to report discovered criminality, they function as de facto government agents conducting criminal investigations.

This investigative function should trigger Fourth Amendment protections under existing doctrine. Courts have long held that private parties acting as government instruments are bound by constitutional restrictions. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989) (“[Fourth Amendment] protects against such intrusions if the private party acted as an instrument or agent of the Government”). Here, the government compels citizens to appear, subjects them to investigation, and requires reporting of any criminality discovered—effectively deputizing private attorneys as investigative agents.

Consider the implications. A prospective juror whose social media reveals past drug use, whose location data shows patterns suggesting criminal activity, or whose financial records hint at tax evasion now faces potential prosecution—not from any interaction with law enforcement, but from compelled appearance for jury duty. See, e.g., Marty Roney, Man Shows Up for Jury Duty in Prattville, Gets Arrested for Outstanding Warrant, Montgomery Advertiser (Aug. 26, 2019) (juror unaware of wife’s domestic abuse report; someone commented he’s “not a flight risk” and “should get bond” because “he showed up for jury duty”). Under this framework, Carpenter’s warrant requirement should apply with equal force, placing invasive investigation of such “all-encompassing” information, like geolocation data, off limits. 138 S. Ct. at 2216-17 (“‘what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected’” quoting Katz v. United States, 389 U.S. 347, 351-52 (1967)).

The constitutional risks sharpen when recognizing that the state effectively compels both sides of this surveillance equation. Citizens are compelled to appear through court summonses backed by contempt powers. Simultaneously, attorneys are compelled to investigate those citizens—failure to do so risks ineffective assistance claims under Strickland, malpractice liability, and violation of their duty of diligent representation under Model Rule 1.3. The state thus orchestrates a collision between unwilling subjects and obligated investigators, then washes its hands of the resulting privacy violations by noting that private parties conduct the actual surveillance. This double compulsion—forcing citizens to be investigated and attorneys to investigate—creates a state-managed surveillance system while maintaining the fiction of purely private action.

C. The 5th Amendment Trap: Compelled Appearance, Coerced Disclosure

The Fifth Amendment protects against self-incrimination, U.S. Const. amend. V, but jury service forces citizens into situations where they must choose between self-incrimination and contempt. While voir dire isn’t custodial interrogation triggering full Miranda protections, the compulsory summons creates conditions the Supreme Court has long recognized as problematic. See Minnesota v. Murphy, 465 U.S. 420, 426-27 (1984) (statements made to probation officer).

As early as 1878, the Supreme Court held that “a juror is, no more than a witness, obliged to disclose on oath his guilt of any crime, or of any act which would disgrace him.” Burt v. Panjaud, 99 U.S. 180, 181 (1878) (prospective juror asked if “he had aided or abetted the late rebellion against the United States”). The Court reasoned that whether pardoned or not, a prospective juror “could not be required to disclose [criminal conduct] in this manner.” Id. Yet modern voir dire routinely ventures into precisely such territory.

The court’s decision in People v. James illustrates this trap. During voir dire in a drug prosecution, the prosecutor systematically questioned all but one of the empaneled jurors about their illegal drug use—asking directly whether they had “ever used or had exposure to cocaine or any narcotic substance.” 710 N.E.2d 484, 486-87 (Ill. App. 1999). Multiple jurors admitted to past marijuana use, providing details about when and where. The appellate court condemned this practice as violating the Fifth Amendment, noting that “jury service is not voluntary, nor is submission to a prosecutor’s questions during voir dire.” Id. at 490.

The court’s reasoning in James reveals a deeper problem. Even when jurors successfully avoid self-incrimination by remaining silent, the prosecution gains leverage in the trial. As the defendant argued, “once seated, jurors might well be partial to the prosecution out of fear that a ‘not guilty’ verdict could result in their drug use being investigated and exposed by dissatisfied or vindictive prosecutors.” Id. at 491. While the court rejected this particular theory due to waiver (the defendant failed to object during voir dire), the underlying dynamic remains. Prosecutors asking potentially incriminating questions create implicit pressure toward conviction.

Most troubling, courts can simply override Fifth Amendment protections entirely. In Daugerdas, when a prospective juror invoked her Fifth Amendment privilege during voir dire questioning, the court granted the prosecution’s application for use immunity and compelled her testimony anyway. 867 F. Supp. 2d at 450 n.2. The government’s power to force self-incriminating answers from citizens summoned for jury duty represents a complete inversion of Fifth Amendment principles—the privilege exists until the government decides it doesn’t.

This compelled testimony power exceeds even what the James court contemplated. There, the court relied on Brandborg v. Lucas for the proposition that judges must “protect the [constitutional] privacy rights of the prospective juror” and by extension the right against self-incrimination. 891 F. Supp. 352, 356 (E.D. Tex. 1995) (“Likewise, nothing about becoming a prospective juror amounts to a willing waiver of one’s other constitutional rights”). But Daugerdas shows that judges can instead help prosecutors pierce those rights entirely through use immunity—forcing citizens to reveal potentially criminal conduct as the price of jury service.

The trap tightens further through the threat of perjury and contempt charges. If prospective jurors lie to avoid self-incrimination, they face prosecution for perjury. See United States v. Mandujano, 425 U.S. 564, 576 (1976) (no Fifth Amendment privilege to commit perjury). If they refuse to answer, they face contempt. If they answer truthfully, they provide evidence for their own prosecution. And as Daugerdas demonstrates, even invoking the Fifth Amendment may result in compelled testimony under use immunity.

This creates a “cruel trilemma” faced by ordinary citizen jurors—but unlike interrogation faced by criminal suspects in police custody who can at least remain silent, prospective jurors enjoy no reliable refuge. While James and Brandborgsuggest they can invoke their Fifth Amendment rights, Daugerdas demonstrates that prosecutors can simply obtain use immunity and compel answers anyway. Thus jurors must speak, must speak truthfully, and must incriminate themselves when the government insists, all because they received a jury summons.

The absence of Miranda warnings creates an additional hazard. Because voir dire is not custodial interrogation, prospective jurors receive no warning that their answers can be used against them in criminal proceedings. See Murphy, 465 U.S. at 427-28 (Miranda warnings required only for custodial interrogation). A prospective juror who admits to past drug use, tax problems, or other criminal conduct creates an admissible confession on the court record—sworn testimony that prosecutors can use in subsequent criminal proceedings. Unlike police interrogation where admissions of guilt in the absence of Miranda warnings can be excluded at trial, a prospective juror’s admissions in response to voir dire questions are non-custodial and can be used as evidence of guilt. The very safeguards that protect suspects in police custody do not apply to coercive questioning of prospective jurors in the courtroom. And in a courtroom filled with lawyers, not one of them represents the interests of prospective jurors.

Modern digital investigation compounds these Fifth Amendment concerns. AI-powered investigations push the boundaries of voir dire questioning to previously unforeseen levels of granularity. Modern voir dire can now venture into the fine details of complex financial patterns suggesting tax issues, social media posts indicating drug use and drunk driving, or location data showing presence at protests that turned violent. The privilege against self-incrimination is increasingly illusory against an unforgiving algorithm when the only remaining question is, “You are the person reflected in this data, aren’t you?”

The Fifth Amendment was designed to prevent exactly this kind of government-compelled self-incrimination. Yet jury service creates a constitutional cage fight: the government can compel citizens to appear, force them to choose between self-incrimination and contempt, override their Fifth Amendment invocation through use immunity, and subject them to AI-powered investigations that reveal what the Constitution would otherwise forbid asking. The Framers could never have imagined a system where civic duty would require so much of citizens to participate in a system of justice.

D. The Participation Crisis as Constitutional Symptom

These constitutional risks manifest in collapsing jury participation. A 2024 American Judges Association poll found that 73% of judges report increasing problems with citizens ignoring jury summonses, with many of the judges reporting that response rates are plummeting below 50% in some jurisdictions. Ed Cohen, Poll Finds Judges are Concerned About Numbers of People Ignoring Summonses for Jury Duty, The National Judicial College (October 31, 2023). King County, Washington exemplifies this crisis, reporting a 10% jury summons response rate in recent years. Peter Collins et al., An Exploration of Barriers to Responding to Jury Summons, Technical Report to the Washington State Administrative Office of the Courts, at 9 (June 24, 2021).

Judges sometimes attribute this crisis to citizen apathy, with surveyed judges describing a “lack of respect for authority” and a “decline in civic responsibility.” Cohen, supra, at 2. Yet these diagnoses ignore the legitimate fears driving avoidance of many potential jurors. Studies have found that potential jurors cite privacy concerns—including release of personal information and potential for social media exposure—as significant barriers to participation. Citizens on Call: Responding to the Needs of 21st Century Jurors, Conference of State Court Administrators, at 21-23 (December 2023) (“this threat to juror privacy may impact a willingness to serve”).

Citizens increasingly understand that jury duty means risking public disclosure of sensitive medical conditions during voir dire, revealing mental health struggles that could exacerbate anxiety or affect employment, and exposing financial problems that compound existing hardships. Id. When judges dismiss these concerns narrowly, they miss the broader privacy concerns that affect all prospective jurors, not just those with criminal records. 

The avoidance strategies are diverse. Citizens change addresses without updating voter registrations, claim disqualifying hardships regardless of actual circumstances, or simply ignore summonses knowing enforcement is rare. Cohen, supra, at 2-3. Some judges respond with increasingly punitive measures—one reports regularly issuing orders to show cause and holding hearings. Id. Yet harsh enforcement may only worsen the problem.

The disconnect between judicial perception and citizen experience reveals the depth of the crisis. While judges lament the loss of civic virtue, citizens rationally avoid a system that treats them as subjects for investigation rather than participants in justice. These constitutional tensions aren’t abstract—they’re hollowing out the jury system. When citizens view jury duty as a threat to their privacy, dignity, and liberty rather than as civic participation, the foundation of trial by jury erodes.

VIII. Looking Forward: Short-Term Priorities While Awaiting Comprehensive Reform

Judge Orrick deserves credit for recognizing and addressing the privacy implications of modern jury investigation. His recent sanctions order represents one judge’s attempt to draw boundaries in an increasingly boundaryless digital world. But individual judges issuing standing orders and imposing occasional sanctions cannot solve the challenges presented by the rapidly changing digital environment. More comprehensive solutions addressing the permissible scope of jury investigation are better suited for legislators, judicial commissions, and bar associations with the resources to study these complex issues systematically.

In the meantime, however, there is one glaring gap that courts can and should address immediately—the complete absence of rules governing the use and disposition of jury investigation data.

A. The Regulatory Void for Jury Data

The absence of data governance rules creates a particularly troubling vacuum. Federal Rule of Civil Procedure 26 has evolved into an elaborate framework for the protection of discovery materials—protective orders, confidentiality designations, clawback provisions, mandatory destruction after litigation. Fed. R. Civ. P. 26(c)-(g). Federal Rule of Criminal Procedure 6(e) strictly governs grand jury secrecy. Fed. R. Crim. P. 6(e). Yet no comparable framework exists for petit jury investigation data.

The contrast is striking. In every complex civil case, courts routinely issue protective orders that limit use of discovered information to “this case only,” restrict access to those who sign the protective order undertaking, and require destruction of the opposing party’s confidential data at the case’s conclusion. See Manual for Complex Litigation § 11.432 (4th ed. 2004) (describing standard protective order provisions). These orders recognize that sensitive information properly obtained through discovery should not remain permanently in possession of the receiving party.

Consider what happens in a typical patent case like Contour IP Holding. Confidential technical documents, source code, and business plans are exchanged under a protective order that strictly limit their use and require their return or destruction after judgment. See, e.g., In re Deutsche Bank Trust Co. Americas, 605 F.3d 1373, 1378 (Fed. Cir. 2010) (discussing standard protective order practice). Yet when those same litigants investigate potential jurors—compiling their personal information including psychological profiles, family relationships, and behavioral predictions—no restrictions whatsoever govern that data’s retention or use.

B. The Case for Jury Data Protection

Several factors make jury investigation data uniquely deserving of protection, starting with how the compilation itself sharply elevates privacy concerns. While each data point may be publicly available, their assembly creates something new that is not generally known in the public—much like trade secret law recognizes that even publicly known elements can be uniquely combined to create protected trade secrets. See, e.g., Metallurgical Industries Inc. v. Fourtek, Inc., 790 F.2d 1195, 1201-02 (5th Cir. 1986) (holding that a trade secret can exist in a unique combination of publicly known elements). A data broker’s report on a juror may aggregate hundreds of public data points, but their compilation into a comprehensive profile creates information that didn’t previously exist in that form.

Modern AI tools go far beyond mere compilation—they analyze and interpret, creating psychological assessments, behavioral predictions, and influence probability scores. This analytical layer transforms public information into sensitive personal insights about a prospective juror, similar to how trade secrets can arise from applying skill and effort to public domain materials. When an AI system processes a juror’s social media posts to predict verdict tendencies or identify personality traits, it creates new information that vastly exceeds what any human could derive from reviewing the same public information.

The personal sensitivity of these compiled profiles raises particularly troubling concerns because it derives entirely from citizens’ compelled civic participation. Unlike typical business intelligence gathered from voluntary commercial interactions, jury investigation data is a consequence of citizens’ mandatory appearance for jury duty. Jury consultants prepare personal dossiers on prospective jurors using the court’s summons power. This transforms jury duty from civic obligation into involuntary personality profiling.

The risks from potential data breaches add another dimension of urgency. The comprehensive profiles assembled on jurors—including mental health indicators, financial stress signals, relationship problems, and political leanings—would be devastating if breached. Unlike a credit card number that can be cancelled or a password that can be changed, these psychological and behavioral profiles represent immutable vulnerabilities. The Cambridge Analytica scandal is one such example of the dangers of psychographic data escaping into the wild. See In re Facebook, Inc. Consumer Privacy User Profile Litig., 402 F. Supp. 3d 767, 779-80 (N.D. Cal. 2019) (discussing risks from breach of user profile data).

C. A Modest Framework Courts Can Implement Today

Unlike comprehensive jury investigation reform, which requires systemic rule changes, data governance can be implemented immediately through judicial orders. Courts already have the authority and the template—they issue discovery protective orders daily. Jury data governance is the logical next step. It should be part of every pretrial order.

A standard jury data protective order could include:

Use Limitations: All jury investigation data must be used solely for the present case and cannot be retained for future matters or shared beyond those identified in the order.

Access Restrictions: Only counsel and designated jury consultants who sign the protective order may access the compiled jury data.

Destruction Requirements: All jury investigation data must be destroyed within 30 days of verdict or settlement, with certification of destruction filed with the court.

Security Obligations: Parties must maintain jury investigation data with security measures at least as stringent as those used for confidential discovery materials.

Breach Notification: Any breach or unauthorized disclosure of jury investigation data must be immediately reported to the court and affected jurors notified.

No Commercialization: Jury investigation data cannot be sold, licensed, or used to develop commercial products or services.

These protections would not prevent reasonable investigation into bias—they would simply ensure that data compiled through the court’s coercive power doesn’t become a threat to the privacy interests of ordinary citizens summoned to jury duty. And in doing so, we would protect citizens’ data compiled through jury service in the same way we protect litigants’ sensitive information disclosed in discovery from unwanted public disclosure or use.

Importantly, such use restrictions would go a long way toward addressing the constitutional tensions identified earlier in this article. The Sixth and Seventh Amendments’ guarantee of an impartial jury would still permit reasonable investigation, but the Fourth Amendment’s privacy concerns and Fifth Amendment’s protection against self-incrimination would be partially addressed by ensuring that any data collected is temporary and used solely for the case at hand.

Citizens might be more willing to participate in jury service knowing that any investigation of them is limited to the immediate case and that their data profiles won’t persist indefinitely. This could help ameliorate the participation crisis while still allowing attorneys to conduct the investigation needed for fair trials.

IX. Conclusion: The Urgency of Action

Judge Orrick’s recognition that jury investigation raises privacy concerns deserves praise. But while we await comprehensive reform on the permissible scope of prospective juror investigations, courts can act now to govern what happens to the data that’s currently being collected. The templates exist, the authority is clear, and the need is urgent. The only question is whether courts will act before millions of citizens discover that jury duty means not just serving justice, but risking disclosure of sensitive personal dossiers they never knew existed.