Law enforcement has dramatically increased the number of requests it makes to cell phone providers for customer data, often without a warrant. Some requests come in the form of a subpoena, while others are reportedly far less formal. The state of the law regarding cell phone data, which must balance customer privacy, provider responsibilities, and law enforcement needs, remains unsettled. Some courts have ruled that accessing cellphone data without a warrant violates the Fourth Amendment, while other courts have said almost the opposite. The law has not advanced as fast as the technology.
In mid-2012, Congressman Edward J. Markey of Massachusetts requested information from nine cell phone service providers about requests they received from law enforcement during 2011. His office received responses from all nine, although T-Mobile reportedly did not include the number of requests it received in its response. The other eight providers reported a total of 1.3 million requests from local, state, and federal law enforcement agencies. Markey’s office says that this is the first accounting ever performed of law enforcement requests for wireless data.
The total number of requests received in 2011 is a significant increase over previous years, according to some of the providers responding to Markey’s office. Verizon said the number of requests had increased over previous years by fifteen percent, while T-Mobile estimated the increase as twelve to sixteen percent. Providers must maintain staff whose full-time job is responding to law enforcement requests. Markey’s office compares the 1.3 million requests sent in 2011 to the comparatively small 3,000 wiretaps issued by courts nationwide in 2010. Wiretaps are less useful for electronic communications like text messaging and email, where law enforcement cannot “listen” to anything.
Not all information requested by law enforcement originates from a criminal investigation of that particular customer. Some providers stated that they would provide a customer’s location information, ascertained with a cell phone’s GPS signal, in cases of 911 calls or other imminent threats to a person’s safety. Most providers, in media coverage of Markey’s report, asserted that they require a warrant or “probable cause” to release information about their customers in most cases. The meaning of probable cause in this case, along with the qualifications of cell phone provider employees to assess a law enforcement officer’s assertion of probable cause, remains a subject of much dispute.
Recent cases at the state and federal level have reached different decisions on the Fourth Amendment’s protection of cell phone data. A federal appellate court held last year that police did not violate a defendant’s Fourth Amendment rights by using data emitted from the defendant’s cell phone to track his location in real time. United States v. Skinner, No. 09-6497 (6th Cir., Aug. 14, 2012) (“There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone.”) A judge in Rhode Island ruled that an individual had a reasonable expectation of privacy in his cell phone, and that police violated her Fourth Amendment rights, and the rights of the defendant, by reading text messages on her phone without a warrant. Rhode Island v. Patino, C.A. No. P1-10-1155A (R.I. Super. Ct., Providence, Sep. 4, 2012).
Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.
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No Reasonable Expectation of Privacy for Defendant Who Allegedly “Mooched” Off Neighbor’s Wi-Fi Network, Court Holds, Texas Criminal Lawyer Blog, December 16, 2012