Courts Address Cell Phone Privacy

Carl Weinschenk
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An important legal question involving cell phones is likely headed to The Supreme Court. Though it is a bit tangential for mobile workers and the companies by whom they are employed, how it hashes out is worth watching and, eventually, will affect how mobile policies are structured.

WirelessWeek reported last week that the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, ruled that police must obtain a search warrant to obtain the cell phone records of suspected criminals. It was a 2-1 decision. That means that there are conflicting decisions between circuits, which makes Supreme Court intervention likely.

Cell phone records offer a treasure trove of information to investigators. The most obvious data is about the movements of a suspect from cell tower to cell tower. The legal question focused on what level of privacy a person has in their relationship with a cell phone provider. The court found that the use of this data without a search warrant violated the Fourth Amendment rights of two people convicted of robbery in Baltimore. (Their convictions were upheld because the investigators did act on court orders. The decision “stipulated that future investigations must obtain search warrants before seeking such information,” the story said.)

This is not the only recent move regarding the treatment of cell phone records and associated issues. Last month, the California Electronic Communications Privacy Act (Cal-ECPA) unanimously passed the state’s assembly. The story says that the statute, if enacted, would cover communications and metadata in the cloud and the transit of data between users and their providers. The story outlines the parameters of the act, which include outlawing phony cell towers:

If Cal-ECPA is indeed enacted, it would be the most comprehensive state law on digital searches and seizures in the United States. The bill would codify in California the U.S. Supreme Court’s 2014 holding in Riley v. California, 134 S. Ct. 2473 (2014), that a physical search of an arrestee’s cell phone requires a warrant. However, Cal-ECPA would go further than the Supreme Court’s decision by also outlawing warrantless remote searches using so-called “stingrays,” devices that mimic a cell phone tower in order to locate and track the device’s user.

Cal-ECPA now moves to California’s full Senate. Even if it passes, however, its future is not assured. Governor Jerry Brown has vetoed similar bills in 2012 and 2013, according to JD Supra Business Advisors.

The Atlantic dives more deeply into the details of the legal situation, which are fascinating. The issues involve what standard law enforcement officials should be held to in order to get the records: probable cause that a suspect committed a crime or mere suspicion, which is a much lower threshold. Another key is whether a person subscribing to a cell phone contract is voluntarily surrendering records that subsequently are created by the use of that phone or if he or she has an expectation of privacy despite the agreement.

The limits of the use of cell phone records in law enforcement are another example of the difficulties of translating the Constitution and the laws that emerge from it in the digital age. It also is likely that precedents set on these specific questions will be used to enlarge or restrict rights in related areas. For employers, the eventual decisions should be considered as organizations establish the legal basis of their mobile policies.

Carl Weinschenk covers telecom for IT Business Edge. He writes about wireless technology, disaster recovery/business continuity, cellular services, the Internet of Things, machine-to-machine communications and other emerging technologies and platforms. He also covers net neutrality and related regulatory issues. Weinschenk has written about the phone companies, cable operators and related companies for decades and is senior editor of Broadband Technology Report. He can be reached at and via twitter at @DailyMusicBrk.

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