Cell Phone Privacy: Does It Exist in a Digital Era?

Cell phones are an integral part of everyday life for most Americans. With the extensive use of cell phones and their data storing and location tracking capabilities, legal issues involving privacy rights have become a hot topic for debate.

The fourth amendment of the U.S. Constitution protects citizens’ rights against “unreasonable searches and seizures.” It enforces the need for probable cause and a  warrant before belongings are taken or property is searched.

The debate rages on as to whether this amendment applies to cell phone data and tracking. As a U.S. citizen, it’s important to know what data your phone may reveal and when it’s legal for authorities to access this data.

Types of Data Your Phone Can Reveal

Your cell phone harbors an extensive amount of data about you, your whereabouts, your contacts, and your location. If law enforcement seizes your cell phone data, they can peruse your phone calls and texts to see who you contact and when.

A simple text or call can show that you violated a restraining order. If you speak openly with friends and family on your cell phone, the content of these conversations may provide law enforcement with information on how you committed a crime.

Cell phones also have location tracking and this data can be used to uncover your whereabouts. Your location tracking data shows if you were in the vicinity where a crime was committed. If you’re on unsupervised probation, you may think you could potentially sneak out without getting caught. However, location tracking data can alert law enforcement if you violated your probation and let them know where you went.

The Use of Cell Phone Data in Law Enforcement

Some of the data on your phone can be accessed without physical access to the device. If law enforcement is investigating you and wants your messages from a social media platform, they can contact the social media company directly. They can also contact a friend you engaged with to solicit any exchanged messages.

Law enforcement may contact cell phone carriers directly to ask about data they have stored from your cell phone usage. They can gain access to all the cell phone data you had stored on your carrier’s cloud through backups you performed.

Some cell phone apps encrypt data, so law enforcement won’t be able to find information on how you interacted with these apps on the cloud. In these cases, they need to gain access to your physical device or the device of a friend you interacted with through the app. If cell phone data is properly and legally obtained by law enforcement, it may be submitted in a court of law as evidence.

Standard Protocol of Cell Phones Searches

The way in which law enforcement searches a cell phone depends on the information they’re looking for. If they’re trying to obtain third-party data, law enforcement simply needs probable cause and the proper subpoena, court order, or warrant to take the steps necessary to get this data.

With the proper paperwork, they can search through your mobile phone carrier’s cloud and anything you have saved there. With a warrant, law enforcement may also contact apps or social media companies to retrieve data about you and your communication.

If law enforcement is looking for personal data that’s stored directly on your phone, the lines begin to blur about what’s legal. If your phone is protected by a password or other security feature, law enforcement may have trouble gaining access to the data.

In some cases, you may be required to provide access to your cell phone data for law enforcement to peruse. However, some lower court systems claim the fifth amendment of the U.S. constitution allows you to refuse access to your cell phone. This amendment protects you from providing self-incriminating evidence.

If law enforcement already has incriminating evidence and simply needs to confirm its prior knowledge, the fifth amendment may not hold up in court. You may be ordered to provide access to your cell phone, though criminal defense attorneys can attempt to contest these orders and protect your personal data. Since the waters are muddied on direct access to cell phones, criminals may appeal if they feel illegally obtained evidence is used against them in court.

The Supreme Court’s Verdict

A monumental U.S. Supreme Court case called Carpenter v. The United States changed the legalities of cell phone location tracking data. Before this case was heard, the government claimed that location tracking data was shared and public knowledge since it’s kept by wireless carriers and sometimes offered for sale to third parties. They claimed this fact excluded the data from the fourth amendment.

Law enforcement wasn’t required to obtain the proper warrant to get this data and use it as evidence in court. With this loophole, law enforcement didn’t need probable cause to obtain location tracking data directly from mobile service providers.

This case challenged the ethics of searching without probable cause and the consideration that a warrant isn’t required to obtain this evidence. The Supreme Court ruled this was unconstitutional and that proper warrants are required to obtain location tracking data through cell phone providers.

Government Surveillance of Cell Phones

Even with the ruling of Carpenter v. The United States, the government still exercises its right to cell phone surveillance. The government uses a loophole in location tracking to maintain its right to surveillance. Since apps sell location tracking data to third-party companies, the government identifies as a third-party buyer, claiming the Carpenter ruling doesn’t apply.

Cell phone users agree to “terms and conditions” of these apps without fully reading the rights they give up simply by installing the app. The information the app tracks may be provided to the government for surveillance activities.

President Trump suggested the use of location tracking data to track the movement of a population and enforce border protection. In 2020, this loophole in the law was also considered for use by governments to track how the COVID-19 pandemic was spreading.

Tracking Other Technological Devices

Advancements in technology, including smart home accessories such as wifi-enabled lights, thermostats, or voice-enabled devices, continue to drive the ethical conversation surrounding location and data tracking.

These devices also come with their own data that law enforcement may want to use as evidence in small claims court or for more serious crimes. Privacy issues may expand to include other technologies in , as well as state and federal courts.

Law enforcement and the government face blurred lines when it comes to using cell phone data as evidence or to track the location of the public. Therefore, it’s important to know your rights when it comes to cell phone privacy and request legal help if you feel they’ve been violated.juvenile justice systems