Privacy Under Siege

Pursuant to a D. C. Federal Circuit Court decision, the government will not need to obtain a warrant in order to compel a cellular phone service provider to disclose information regarding call location. Instead, the government will only need to present evidence to prove the requested data is material to the subject investigation. This standard falls short of what is usually required for the government to search personal property for evidence of a crime, probable cause.

The net effect of this ruling will allow government investigators to track an individual – without a warrant –based upon the location of his cell phone communications. Last year, the same court ruled police must first obtain a warrant before attaching a global positing system device to a vehicle to track its movement. This week’s decision appears to signal the Court’s intent to reexamine its position.

The Court’s decision hinged upon the limited expectation of privacy a cell phone user should expect regarding his location. As the Court stated:

“[A] reasonable cellular phone customer presumably realizes that his calls are all transmitted by nearby cell-site towers, and that cellular phone companies have access to and likely store data regarding the cell-site towers used to place a customer’s calls… [the caller’s] decision to place a cellular phone call and thus provide information regarding his location to the phone company thus defeats an individual’s privacy interest in that information.”

The Court found the information revealed only an approximate position from the spot the person made the phone call and did not indicate how long a person remained in any given position. The Court compared this information to “a blank connect-the-dot image” and concluded the “historical (cell site location data) comprises an incomplete and scattershot image of an individual’s travels.” Thus, no warrant was required.

This decision is just one of many recent government actions, on both the state and federal levels, that open up private property and information to government inspection. In January 2011, the California Supreme Court held that police may search cell phones of individuals taken into custody, even if there is not reasonable cause to believe there is evidence of a crime contained therein. In October 2011, California’s Governor Brown vetoed a bill proposed by Sen. Leno to restrict government inspection of cell phones without probable cause.

The message to cell phone owners, be wary: if you are taken into custody, you can expect the police to inspect all the information you have on your cell phone. Private texts, emails, im’s, web-browsing history, photographs, call logs, any files at all, can and will be searched. 

Because the prosecutor’s office is aggressive and creative, nothing is more important than the criminal defense attorney you choose.   It is best to hire an experienced Orange County criminal defense lawyer to protect your rights.