Magazine article Information Today

Smartphones and Cell Towers: Finding the Legal Limits

Magazine article Information Today

Smartphones and Cell Towers: Finding the Legal Limits

Article excerpt

I can be a bit of a sucker for police procedural television shows, particularly the high-tech variety such as Bones, NCIS, CSI, and the like. They have introduced a generation of viewers to amazing crime-fighting technicians and technologies that seem to be able to "identify the killer" with the smallest of clues. The rise of this kind of show has actually created a problem for criminal trial lawyers--both prosecutors and defense attorneys-through something called "the CSI effect," which is the expectation by jurors that some amazing technology, whether it's forensics, DNA or blood splatter analysis, or computer tracking, will clearly--and in just an hour--identify the culprit.

One of the more popular of these on-screen technologies is cellphone tracking. It's a favorite on Bones, on which the skilled scientists at the fictional Jeffersonian Institute are able to access telephone company records to figure out which cellphone towers were handling a particular call and pinpoint the person's location. It not only makes for great television, but similar to a lot (but not all) of on-screen technologies, it happens to have a real-world counterpart. It was at the center of the criminal case of Quartavious Davis, who was convicted of seven armed robberies in southern Florida over a 2-month period in 2010.

Among the evidence used to convict Davis were records obtained from his cellphone provider, which showed the phone numbers that Davis called and the cell tower(s) that connected each call. By associating the locations of the towers with the timing and location of Davis' calls and the timing and location of the robberies, the government was able to show that Davis was in the vicinity of six of the seven robberies.

The government obtained the cell tower information after Davis was arrested. A court order was issued to his cellphone provider to turn over the records. Notably, no search warrant was issued. Davis objected to the absence of the search warrant, contending that his Fourth Amendment right against searches without a warrant was violated. Both the trial court and a federal appeals court rejected Davis' Fourth Amendment claim, and in early November 2015, he suffered his third and final strike when the U.S. Supreme Court refused to hear his appeal. Davis was sentenced to nearly 162 years in prison for his convictions.

Stored Communications Act

The request to obtain the cellphone information was based on the Stored Communications Act, a federal law that allows the government to obtain telecommunications and telephone service provider records "pertaining to a subscriber" on the basis of a "reasonable grounds to believe" that the records are "relevant" to an ongoing criminal investigation. This is a far lower standard than the Fourth Amendment's requirement that the government have "probable cause" to believe that the person in question actually committed the offense.

The Stored Communications Act was signed into law in 1986, in the earliest desktop computing days and well before the days of the internet and smartphones. At that time, its coverage was largely limited to landline telephones. The records might include the subscriber information as well as phone numbers called to and from and the calls' duration, but that's it. They would not include the content of the calls--the words spoken by the caller and the recipient. This distinction is critical under both the Fourth Amendment and broader privacy law in that information "shared" with others is given lower privacy protection than information that is not shared. …

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