Cell Phone Records and the Fourth Amendment

On February 12, 2010, the Third Circuit Court of Appeals heard oral argument on what is, surprisingly, an issue of first impression:  can the federal government subpoena a person’s cell phone records from its mobile phone provider without a showing of probable cause that the person has been engaged in illegal activity? 

 The Justice Department, not surprisingly, asserts that no showing of probable cause is necessary.  Its position is that an individual customer has no right of privacy in ordinary, normally kept business records of the phone companies.  Thus, federal agencies like the FBI and the Bureau of Alcohol, Tobacco and Firearms would not, in the DOJ’s view need to make a showing of probable cause and obtain a search warrant. 

 Opponents of that position argue, among other things, that an individual’s right of privacy can too easily be infringed by the federal government if no showing of probable cause is required.  For example (and note that it is impossible to tell a judge’s true position from questioning during arguments), one of the presiding judges at the hearing questioned whether it would not be possible for a government to monitor whether a person had not been at a “protest, or at a meeting or at a political meeting.”

The Third Circuit’s decision will be interesting and it seems a likely bet that it will not be the last word; this is the sort of issue where the losing side would seem likely to appeal or at least try to appeal the case to the Supreme Court.

    – Rod Fluck




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