Are your cell phone records and information private information or public information? As cell phones become more and more technologically advanced, and as the number of people whose only telephone number is a cell phone increases, so do the number of legal issues that have arisen regarding whether cell phone records and information is private or public information. The answer has a number of implications, not the least of which is the question about whether a law enforcement agency has the right to obtain your cell phone records and information without a search warrant or if this information is constitutionally protected under the 4th Amendment as part of every American’s right to be free from unreasonable searches and seizures.
Is There a Reasonable Expectation of Privacy?
This week, in a federal case that’s on appeal before the Third Circuit, the Court is considering the question of whether the government must obtain a search warrant to access this information because it is constitutionally protected private information or if the government can obtain that information without a search warrant because it is public information to which there is no reasonable expectation of privacy. The Bureau of Alcohol, Tobacco, Firearms and Explosives claims it needed historical (meaning stored data from previous calls, not the ability to tap into calls or call records that are expected to be made in the future) phone location information because a set of suspects “use their wireless telephones to arrange meetings and transactions in furtherance of their drug trafficking activities.” U.S. Magistrate Judge Lisa Lenihan in Pennsylvania denied the Justice Department’s attempt to obtain stored location data without a search warrant. While the Court’s ruling does not eliminate the ability of law enforcement agencies to obtain the information, the ruling would require law enforcement agencies to obtain a search warrant based on “probable cause” before they can obtain the cell phone records and information.
“The big picture in the case is whether the US government can circumvent the constitutional rights of the individual, and therefore avoid the need to obtain search warrants when requesting this information by claiming that the information is obtained from a third party (a cell phone provider) as opposed to obtaining the information directly from the individual because typically information obtained from a third party does not usually get constitutional protections. The government is arguing that based on precedents from the 1970s, any record held by a third party about us, no matter how invasively collected, is not protected by the Fourth Amendment.
U.S. Magistrate Judge Lisa Lenihan’s ruling which was joined in by four other judges noted that cell phone location information can reveal sensitive information such as health treatments, financial difficulties, marital counseling, and even extra-marital affairs. In appealing the ruling, the Department of Justice claims a search warrant is not necessary because information that only provides the location of the cellular telephone provides “only a very general indication of a user’s whereabouts at certain times in the past, and that the requested cell-site records do not implicate a Fourth Amendment privacy interest.”
The Department of Justice is relying heavily upon other rulings to support its position that the information can be obtained without the necessity of a search warrant because they claim there is no expectation of privacy. For example, in 2009, U.S. District Judge William Pauley ruled that a defendant in a drug trafficking case, Jose Navas, “did not have a legitimate expectation of privacy in the cell phone” location because Navas only used the cell phone “on public thoroughfares en route from California to New York” and “if Navas intended to keep the cell phone’s location private, he simply could have turned it off.” In response to the Department of Justice, lawyers for various interests say that Americans do not “knowingly expose their location information and thereby surrender Fourth Amendment protection whenever they turn on or use their cell phones.” They take the position that the calls people are making and even the information about those calls such as when and where the calls were made and to what numbers were called are intended to be private.
Law Enforcement Uses of Cell Phone Records & Information
Without a doubt cell phone records and information can be of great benefit to law enforcement agencies who are investigating and trying to stop or to prevent criminal or terroristic activites. However, if the information falls into the wrong hands, there can be grave consequences. Businesses are routinely transacting business over cell phones. If information regarding those businesses is leaked, it can costs companies millions of dollars. Plus, on a personal level, if personal information is leaked to the wrong person, the information may lead to identity theft and a host of other very harmful consequences.
A great example of how information from cell phones can be helpful to law enforcement involves the arrest and convictions of armed bank robbers in Dallas that were known as the “Scarecrow Bandits.” The Scarecrow Bandits were a highly organized group that had robbed more than 20 Texas banks. In trying to catch and to identify the people involved in these crimes, FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The records showed that two phones had made calls around the time of the bank robberies, and that those cellular telephones belonged to men named Tony Hewitt and Corey Duffey. A Dallas jury eventually convicted the men of multiple bank robberies and weapons charges. Corey Duffey, was sentenced in January 2010 to 354 years. Another member of the Scarecrow Bandits was sentenced to 140 years in prison.
Cell phone tracking has become a regular feature in criminal investigations. It comes in two forms: police obtaining retrospective data kept by mobile providers for their own billing purposes that may not be very detailed, or prospective data that reveals the minute-by-minute location of a handset or mobile device.
Obtaining location details is now “commonplace,” says Al Gidari, a partner in the Seattle offices of Perkins Coie who represents wireless carriers. In another case, Arizona agents from the DEA tracked a tractor trailer with a drug shipment through a GPS-equipped Nextel phone owned by the suspect. This information also has other uses such as the case where information was obtained from a cellular telephone tower to help search for James Kim, who died in the Oregon wilderness in 2006 after leaving a snowbound car to seek help.