Police Accessing Private Cell Phone Data at a Stunning Rate

Posted July 12, 2012 in Government by

Police agencies across the country requested over 1.3 million cell phone records in 2011, according to data provided to Congress by mobile companies. What the police can and can’t ask for without a warrant is still an evolving area of law.

  • Carriers have special teams to handle all the police requests
  • ACLU concerned about location tracking without a warrant
  • Various laws and policies do protect user privacy

 

Gray Areas of the Law

Cell phone data, especially GPS location tracking, is eminently useful to law enforcement to track down witnesses, suspects or to try to pin down a person’s movements and actions in the time prior to and subsequent to a crime. 

Police are taking advantage of the data collected by phones more and more, as the massive number of records sought demonstrates. Among the efforts made by phone companies to comply with requests, according to an AP report:

  • AT&T created a team of over 100 people to handle over 250,000 police requests that came in last year
  • Sprint handled over half a million law enforcement requests
  • US Cellular offers a service menu to law enforcement, charging $25 to locate a phone using GPS, $25 to see someone’s text messages and $50 for a report on all the activity around a single cell phone tower

However, due to differences in local laws, it is not yet entirely clear exactly when police need a warrant to collect cell phone information, and when a simple request or subpoena is sufficient. While warrants are usually required for police to obtain users’ personal data, carriers can waive the requirement in emergencies, leaving a large grey area in the law that the ACLU is calling dangerous. The civil rights group earlier this year released a report that found local law enforcement agencies obtaining GPS tracking data without probable cause.

A 2010 ruling by the Third Circuit Court of Appeals said that judges could but aren’t required to mandate warrants to obtain cell phone location data, since under some circumstances determining a person’s location could violate constitutional privacy rights.

 

Privacy Policies and the FCC

Brian Zeeck

Carriers must tread a fine line as to what to disclose, and when. “It places cell phone companies in a bit of a trick bag,” says Brian Zeeck, an attorney at Hinshaw & Culbertson in Illinois. “While the law may allow them to disclose certain information to third parties regardless of whether there’s a subpoena or order, their privacy policy may not allow them to produce that information.”

Carriers must also make sure they are in compliance with the 1996 Telecommunications Act, which has provisions for customer privacy with potential criminal charges for violations. “Not only are carriers now looking over their shoulders while the FCC is making sure they aren’t violating privacy policies with their subscribers, they are also making sure they’re not disclosing stuff in criminal violation of federal law,” Zeeck says.

Privacy laws notwithstanding, the 1.3 million police requests demonstrate that law enforcement is asking for, and receiving, data at greater and greater volumes. “Courts are starting to lean this way and rule this way frequently that there is no expectation of privacy when users know and are aware that this data is being kept by the cell phone provider,” Zeeck explains. “I can’t expect a certain amount of privacy if I’ve got somebody else listening in on the line at the same time–” ie, the phone provider.

 

Ripe for the Picking

It is difficult for the law to keep up with changing technology, but the ever-increasing amount of personal data that we store and transmit via cell phone will demand a definitive ruling as to what police can and cannot obtain, with or without a warrant.

“On any given day, how often to you use your phone?” asks Zeeck. “Even if you never send a text or make a phone call, your phone is still constantly communicating with cell towers. And that information will be useful under the right circumstances.”

The Supreme Court ruled in January that law enforcement agencies do need a warrant to put a GPS tracking device on a person’s car. The ruling didn’t extend to tracking cell phones using GPS, but a concurring opinion signed by four justices indicated that in the event such a case arose, the court would likely rule that phone tracking also requires a warrant.

Phone records are also frequently sought by plaintiffs in texting-while-driving suits to prove that a defendant was using his or her phone at the time of the accident. However, the bar for such requests is lower because no personal data is involved; the court only needs to see the times at which text messages were sent, not their actual contents or even who the plaintiff was corresponding with.

The safest bet is to not transmit anything over the telephone you don’t want police reading about someday. “People can’t expect that this information isn’t being stored somewhere. The information is out there,” says Zeeck. “The sheer volume of requests– you wouldn’t continue to get that volume if law agencies weren’t successful in getting the information they’re seeking.”

Visit Lawyers.com to learn more about privacy law and to find an attorney in your area who can answer your questions.

Should law enforcement be required to obtain a warrant for your cell phone records or to track your movements through your usage? Share your opinion by leaving a comment below.

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