Privacy and Tracking Cell Phone Use

Our cell phones have been described as the biographer of our daily lives. If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases. The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context. Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier. The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect’s vehicle. The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also “cloning”: having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers. In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue. Privacy law is going to be a growing branch of our jurisprudence in the next few decades.