Some Warrantless Mobile Phone Data Searches Ruled Legal

Some warrantless searches of mobile phone data are legal, a U.S. appeals court ruled, reversing a lower court’s ruling.

The federal government doesn’t need to show a judge probable cause to compel wireless service providers to turn over 60 days of records on the dates, times, numbers called and locations of a particular phone at the time calls are made, the U.S. Court of Appeals in New Orleans said today in a 2-1 decision.

Under the federal Stored Communications Act, the government has the right to conduct warrantless searches of such business records, which are created by phone companies for billing customers for phone use, according to the ruling.

“Communications content, such as the contents of letters, phone calls and e-mails, which are not directed to a business, but simply sent via that business, are generally protected,” Judge Edith Brown Clement wrote for the court’s majority. “Addressing information, which the business needs to route those communications appropriately and efficiently are not.”

The court ruled that cell phone users know they are voluntarily disclosing their locations and the numbers they call to their service providers so that their calls can be connected. Mobile providers warn customers these records may be turned over to police under certain circumstances, according to the ruling.

The American Civil Liberties Union opposed the warrantless searches. The ACLU said that “advances in technology have changed society’s reasonable expectations of privacy in information exposed to third parties,” Clement said in the ruling.

Privacy Expectations

While the court agreed that technological advances can “alter societal expectations of privacy,” Clement said, the law sufficiently protects cell-phone users’ constitutional rights by authorizing warrantless searches only against individuals the government believes are reasonably suspicious and who are identified with “specific and articulable facts.”

Judge James Dennis, in a dissenting opinion, called the records “the most personally revealing information” cellular providers collect. He compared the data to the GPS location information, which the U.S. Supreme Court ruled last year was covered by Fourth Amendment privacy protections.

The case is In Re: Application of the United States of America for Historical Cell Site Data, 11-20884, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

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