Communications and Media

How Much Privacy Do Cell Phone Users Have?

Updated by Brian Farkas, Attorney
Your cell phone records may not be as private as you think.

As you have likely already guessed, your cell phone 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 Cell Phone Records

Federal government agencies can access your cell phone 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 cell phone 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 cell phone company for phone records without a prior warrant as a result of the 2001 Patriot Act, in order help prevent acts of terrorism. They can also wiretap, that is, listen and record your cell phone conversations.

Moreover, the Patriot Act makes it illegal for the cell phone 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. While 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, other courts have yet to weigh in.

Police Can Search Cell Phones

It is not only the federal authorities that can request records of your cellular activity. Local state police can also do so, if they have probably 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 cell phone, 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 cell phone 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 the search of cell phones. 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 cell 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 cell phone conversation would be illegal. Interestingly, however, the U.S. Supreme Court has found that the First Amendment allows an illegally intercepted cell phone 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 cell phone conversations are being recorded and could be made public or used against you.

Cell Phone GPS Tracking

Although there are many advantages to cell phone GPS tracking, there are also privacy concerns. As most people carry their cell phone 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, cell phone tracking could also prove useful in saving lives during emergencies.

For these reasons, the Federal Communications Commission (FCC) requires wireless network providers to give the cell phone GPS tracking location information for 911 calls that have been made from cell phones. This is known as E911.

The law on E911 is fairly explicit. It allows carriers to provide tracking location information to third parties for E911 emergency calls only, however not under any other circumstances without the consent of the cell phone owner. Recent court hearings have disallowed the requests of law enforcement agencies to obtain cell phone GPS tracking information from the cell phone companies for suspects in criminal investigations.

Questions for Your Attorney

  • What can I do if my cell phone company is giving my information to other businesses?
  • Can the police track my movements through cell phone GPS?
  • How can I stop people from intercepting and recording my cell phone conversations?
  • If I am arrested, under what circumstances could my cell phone be searched?
  • The border agents seized my cell phone when I returned to the U.S.; how do I get it back?
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