As you have likely already guessed, your cellphone service provider has access to your phone records. Such records can be very revealing when it comes to your personal relationships, business dealings, financial matters, and purchases. Fortunately, phone companies are subject to privacy laws that require them to keep your information safely stored, away from the public.
There are some exceptions to this general privacy requirement, however, which users should understand and recognize. And under certain circumstances, your phone itself could be seized and its contents perused.
Federal Agencies Can Search Cellphone Records
Federal government agencies can access your cellphone records (including call logs and text records) with a subpoena if you are being investigated in connection with a criminal or civil enforcement action. Your cellphone company is required by law to comply with subpoenas or warrants that request these records.
The Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) can subpoena the cellphone company for phone records without a prior warrant as a result of the 2001 Patriot Act, in order to help prevent acts of terrorism. They can also wiretap, that is, listen and record your cellphone conversations.
Moreover, the Patriot Act makes it illegal for the cellphone company that has delivered your records to the FBI or NSA to make it publicly known or even discuss the fact that your phone records have been investigated.
The federal government also controls U.S. borders, in which context the usual Constitutional requirement that officers have probable cause or a search warrant before conducting a search is lifted. This is because entry to the United States from other countries is considered to be a unique situation, with national security at stake. U.S. airport and border entry officers can, and with increasing frequency do, ask travelers to hand over their phones and other digital devices, along with passwords, for forensic search. At least one court (in the Ninth Circuit) has said that this practice should be limited to instances where a reasonable suspicion of criminal activity exists. But courts around the country are sharply divided on the precise limits to the "border exception."
Police Can Search Cellphones
It's not only the federal authorities that can request records of your cellphone activity. Local state police can also do so if they have probable cause. The Fourth Amendment's protection against unreasonable search and seizure still applies, fortunately, and because you have a legitimate expectation of privacy in the information stored in your cellphone, a search warrant is needed before a police officer or investigator can examine your data.
Note, however, that a police officer may, in some instances, have the authority to search a cellphone when the search is "incident to an arrest." The search is deemed similar to an officer who searches a closed container on or near a person that he or she is arresting. Similarly, if there are "exigent circumstances" to an arrest, an officer who believes that information on the phone itself may prevent immediate future harm may conduct a limited search without a warrant.
Traditional search warrant exceptions apply to searches of cellphones. Where the accessing of memory is a valid search incident to arrest, the court need not decide whether exigent circumstances also justify the officer's retrieval of the numbers from the phone. Police officers are not limited to search only for weapons or instruments of escape on the person being arrested. Rather, they may also, without any additional justification, look for evidence of the arrestee's crime on his or her person in order to preserve it for use at trial.
Illegally Intercepted Communications
Most people would think that publicly broadcasting an illegally intercepted cellphone conversation would be illegal. Interestingly, however, the U.S. Supreme Court has found that the First Amendment allows an illegally intercepted cellphone conversation to be shared with others when the conversation involves matters of significant public interest.
The lesson here is to be careful because technology has increased the chances that your cellphone conversations are being recorded and could be made public or used against you.
Cellphone Tracking Using GPS and Location Data
Although there are many advantages to cellphone tracking, privacy concerns also exist. As most people carry their cellphones with them at all times, the ability is in place to track the exact movements of all individuals. While this reality could lead to an invasion of privacy, cellphone tracking can also prove useful in saving lives during emergencies.
For these reasons, the Federal Communications Commission (FCC) requires wireless network providers to give the cellphone GPS tracking location information for 911 calls that have been made from cellphones. This is known as E911. It allows carriers to provide tracking location information to third parties for E911 emergency calls.
Beyond this emergency tracking capability, law enforcement can also seek court orders directing third-party companies to disclose location data for purposes of criminal investigations. The Supreme Court ruled in 2018 that, in most situations, law enforcement must get a probable cause search warrant to access historical location data. (Carpenter v. United States, 138 S. Ct. 2206.) But the Court did not rule on other forms of emerging technology, such as real-time location tracking and reverse location searches (tower dumps, geofencing), leaving this area of the law in flux. Often law enforcement seeks this data using statutory authority that requires a showing that is less than probable cause.
Questions for Your Attorney
- What can I do if my cellphone company is giving my information to other businesses?
- Can the police track my movements through cellphone GPS or apps?
- How can I stop people from intercepting and recording my cellphone conversations?
- If I am arrested, under what circumstances could my cellphone be searched?
- The border agents seized my cellphone when I returned to the U.S.; how do I get it back?