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How Your Cell Phone Can Be Used Against You

The Carpenter decision is being viewed as landmark since it's one of the first cases to deal with privacy rights and cell phone information.

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Your cell phone holds your life.  Stored in that device is where you’ve been, who your friends are, where you live, what you like, what you’ve bought. And that’s just the data you’ve inputted.

Then there’s the host of other data stored by your service provider that tracks where you’ve been and at what time and date. In a twist out of Orwell’s 1984, your phone can even be activated to record you without your knowledge.  Police can monitor your conversations not only when you’re on the phone, but when it’s laying on a table between you and your friend.

That’s why I advise my clients that if police ask them to come down to the station “just to talk,” not to bring their cell phone.  First, the police don’t ever want to “just talk,” they want to make an arrest.  Next, they’ll seize the cell phone and have easy entry into everything about the owner.  Calls might reveal ties to other suspects and a treasure trove of connections detailing where the suspect’s been over prior months. That could potentially kill any alibi.

Through cell tower triangulation, your service provider records where you’ve been at every given moment. Cell towers are everywhere. The more urban the area, the more towers.  Your cell phone pings from tower to tower as you drive or walk through neighborhoods, pinpointing to a degree determined by the spacing between towers, your location.  These records are kept by your provider and will be provided to police if they ask.

The legal question had been what form did the police “ask” have to take.  Could it be a simple request from law enforcement, or did it have to come in the form of a search warrant signed by a judge and based on a showing that probable cause existed to believe the person’s whose records were being sought was involved in criminal activity? This is the highest standard our law requires.

To the surprise of many, the largely conservative Supreme Court decided last week in a 5-to-4 vote that a warrant was needed in order to obtain cell tower records.

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In U.S. v. Carpenter, Chief Justice John Roberts wrote that cell phone privacy issues affect everyone, not just people suspected of crimes.

According to statistics cited in the decision, of the 326 million people living in the United States, there are 396 million cell service accounts — more accounts than people.  The phone has become an extension of ourselves.  Letting government trace those phones without probable cause is tantamount to affixing an ankle bracelet to each of us and following our moves.  Who wants that?

The Fourth Amendment right to privacy never envisioned a world of smart phones and big data.  That’s why the decision is being viewed as landmark, as significant as Miranda, the case that obliged police to tell arrestees they had a right not to speak to them, or Gideon, which guaranteed legal counsel to anyone arrested. It’s one of the first cases to deal with privacy rights and cell phone information.

But the scope of Carpenter is actually quite limited.  While it holds that a search warrant is needed before law enforcement can get cell tower records, it leaves in place past precedent that permits police to access bank records or mail (not open it, but look at where it came from and where it’s going), or obtain phone records with just a showing that the information is necessary for an investigation. No judge needs to sign off on it. The theory is that if the user consigned information to a third party like Chase Bank or T-Mobile, he’s given up some privacy interest in that data.

One could argue that walking by a cell tower while using your phone similarly cedes information to a third party, but the Supreme Court drew the line where the data tracks an individual’s movements — his actual location as opposed to mere business records.

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This is in keeping with the prior Supreme Court precedent of U.S v. Jones where the court ruled that police couldn’t affix a GPS device to the bottom of a car without first obtaining a warrant.  (Thankfully, police still cannot download all the information on your phone — Facebook apps, photos, videos, etc. — without a warrant.)

While I’m glad they ruled this way in relation to tracking an individual’s movements, it should be noted that getting a judge to sign a search warrant is not all that hard to do.  Most judges come from a prosecutorial background and are inclined to do whatever it takes to further police investigations even if the cop’s affidavit is based on the thinnest of excuses for probable cause.

It’s always a good idea to have someone else looking over the shoulder of law enforcement to guarantee that the power of the state or federal government is not exceeding the bounds of their authority, but it will only make a real difference if judges closely scrutinize the applications and don’t just rubber stamp them.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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