Judge Says Warrant Needed for Cell Phone Records

Judge Says Warrant Needed for Cell Phone Records

A federal judge ruled cell phone records are constitutionally private and therefore can’t be released without a warrant, in a case that may affect how law enforcement officials use data in criminal investigations.

Judge Nicholas Garaufis, of the Eastern District of New York, rejected a federal agency’s demands to order Verizon to turn over location data about a suspect’s cell phone. According to the federal Stored Communications Act, law enforcement must only show someone’s phone records are material to an ongoing criminal investigation.

However, Garaufis, in rejecting the argument, said releasing the data violates the Constitution’s “probable cause” standard, meaning police need a warrant to search phones.

“The fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by ‘choosing’ to carry a cell phone must be rejected,” Garaufis said. “In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy in cumulative cell-site-location records.”

Garaufis’ opinion may be part of a shifting change in how courts treat information gathered from people’s cell phones. For example, in a recent case in Maryland, police wanted a warrant to get a suspect’s GPS information so they could track him down through his phone. But a federal judge refused the request, saying warrants are needed to gather information to investigate a crime, not to track down a suspect.

Garaufis’ Monday ruling is also a rejection of the “third-party” theory stating cell phone users waive their Fourth Amendment rights when they disclose personal information to a business. He said the doctrine shouldn’t apply to “widely used communication technologies in which service-provider intermediaries receive and store private user information incident to the service.”

The judge also said cell phone users should enjoy a “reasonable expectation of privacy” because when someone gets cell phone service, that person is not necessarily consenting to the disclosure of all movements.

“It is time the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine,” said Garafufis.

Garaufis’ ruling may add fuel to other states’ arguments concerning cell phone privacy’s connection to law enforcement. For example, on Monday, California’s State Assembly approved a bill requiring law enforcement officers to secure a warrant before searching cell phones.

“If you are caught with a laptop, they need a warrant. If they come to your home for some reason, they can’t walk into your bedroom, personal office or look at your computer without a warrant,” said the bill’s author, California State Sen. Mark Leno. “Everything inside your phone requires a warrant wherever else it can be found, so why should the smartphone be different?”

However, it may be some time, if ever, before courts completely protect smartphone data. Even the proposed California bill allows police to search phones without a warrant if they believe it necessary to prevent injuries, stop the destruction of evidence or prevent a crime from occurring.

While judges such as Garaufis may rule a warrant is necessary to protect cell phone users’ constitutional rights, there is still no federal law protecting data from search and seizure, with or without a warrant.

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