Cell Towers and the Fourth Amendment: Can the Government Get Those Records?

We have written a lot about the constitutional implications of cell phones and the information on or in them. Questions of whether officers can look at your cell phone, or thumb through your text messages or emails, have been decided both in favor of and against defendants by Maryland courts.

But a recent case is dealing with a related, but not exactly identical question: Whether police can obtain and review your historical cell phone records—that is, the actual logs kept by your cell phone provider, which can contain all kinds of personal and private information.

Why Cell Tower Information is Valuable

Cell phone information is obtained through the government getting data from cell phone towers, which are placed, owned and operated by the cell providers. Your cell connects to these towers every time a call or text is made.

In addition to identifying calls and texts, the towers can also help extrapolate a cell user’s location, because caller’s call is routed through the closest available tower. Thus, in criminal cases, where the location of an accused may be evidence in a case, these records can be very exculpating or incriminating.

The question is whether the government needs a subpoena or warrant to get these records. A recent fourth district case has ruled just that.

Reasonable Expectation of Privacy

If citizens have a reasonable expectation of privacy in the records, then a warrant is needed under the fourth amendment to obtain them. The Court recently ruled that users do in fact have a reasonable expectation of privacy in these records, as they detail the comings and goings of individuals—almost a form of tracking or spying, which the consumer allows the cell phone company to do, but has not authorized law enforcement to obtain and use.

The government had tried to argue that the nature of cell phone tower activity should put it outside the Fourth Amendment because the towers do not actively track someone, they only activate when and if a call is made in their vicinity. But the Court did not buy that distinction, noting that it is not how active the tracking mechanism is, it is whether there is an expectation of privacy by the user that determines whether a warrant is needed by the government.

The fact that the records are kept by private companies (the cell service providers) also did not matter. Once the government tries to get those records, the fourth amendment comes into play.

The Court is now reconsidering the case. Other circuits have done likewise, and many are now reconsidering decisions on different sides of the argument. The problem is that until federal district courts come to some finality, the U.S. Supreme Court can not review the matter. So the rights of the accused may remain different depending on which federal circuit they reside in.

If you are arrested or charged with a crime make sure that your privacy and your constitutional rights are not violated. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your rights.