Federal court finds no Fourth Amendment protection for cell phone call records

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A federal appeals court ruled July 30 in a 2-1 ruling that historical cell phone call records aren't protected by the Fourth Amendment.

The United States Court of Appeals for the Fifth Circuit decision (.pdf), in a case closely tracked by privacy advocates, explicitly discounts Fourth Amendment arguments brought by the American Civil Liberties Union and the Electronic Frontier Foundation and others who participated as amici curiae. The ruling overturns two lower court decisions.

Judge Edith Clement, writing for herself and Thomas Reavley, says historical cell call records are "clearly a business record" and as such, courts must issue an order to cell phone carriers when law enforcement requests historical cell phone record data whenever police demonstrate they have a reasonable suspicion of criminal behavior based on "specific and articulable facts."

Privacy advocates have argued that the location information transmitted by cell phone users isn't voluntary sent, but the majority ruling says cell service subscribers understand that a cell phone must send a signal to a nearby cell tower. Moreover, use of cell phones "is entirely voluntary."

The ACLU has also argued that the pervasiveness of cell phones means that accessing historic call record data amounts to an intrusion on a reasonable expectation of privacy, since knowing even the approximate location of calls can communicate a great deal about the life of the subscriber. Technology experts have said network upgrades means location data gleaned through call connection records are almost as precise as GPS.

"We understand that cell phone users may reasonably want their location information to remain private," the majority says. "But the recourse for these desires is in the market or the political process: in demanding that service providers do away with such records (or anonymize them) or in lobbying elected representatives to enact statutory protections. The Fourth Amendment, safeguarded by the courts, protects only reasonable expectations of privacy," it adds.

For more:
- download the ruling (.pdf)

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