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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, April 17, 2012

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.

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4 Comments:

Blogger gennex73 said...

Thisbis just another case of our privacy being used against us. Cell phones are like our own biographers, agreed and should never be allowed to be used in this manner, unless its for a serious crime, rape, murder, child abductions...but for the sake of what the Feds and local LEO's are wanting to do is just not right, and should be stopped. It's already a federal crime to even video with your cell any officer doing his duty, be it as simple as traffic violation citations, or something worse. There is a man already facing 75yrs for doing this...5counts which are a mandatory 15 yrs a piece, simply for videoing this police coming onto HIS property and inquiring about the vehicals therein...so...where do you draw a line and say enough is enough??? These people already feel they are above the law when it suits them...this would be just more power to them....when does it stop???

April 17, 2012 at 7:44 AM 
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