Call Me Maybe? – The Use of Cell Phone Records as an Investigative Technique to Locate and Track Suspects

In 2008, the FBI utilized a novel and innovative way to track a band of bank robbers in Texas – they obtained phone records. These records not only documented over 20 calls made between two of the robbers around the time that the heists occurred, but also revealed the identities of the two men, thus allowing police to make an arrest. The two men were charged with robbery and possession of deadly weapons charges and were eventually convicted.

This case marked the beginning of a trend in the investigative method of cell phone tracking. The ambiguity of many longstanding federal privacy laws allows for debate over whether or not such a method is, in fact, constitutional. The Obama administration has taken the stance that because most Americans have no reasonable expectation of privacy when it comes to their cell phone records, their Fourth Amendment rights are not violated when a phone company subsequently turns over records to police.

On the other hand, many civil liberties groups such as the American Civil Liberties Union argue that allowing warrantless searches of an individual’s cell phone records could open a so-called “Pandora’s Box” regarding privacy limitations (or lack thereof). If cell phones can be tracked without a warrant, can online history, automobile GPS and even social media be trailed by the government as well sans justification?

And for proponents of this novel investigative technique – how far should investigators be allowed to go? Should warrantless searches be limited to retrospective data such as from where and to whom calls have already been placed? Or should law enforcement be privileged to attain up-to-date live information documenting where a cell phone is at any given moment and receive notification when such a device is used? Questions like these are not readily answered in current privacy statutes and have found themselves at the onus of much litigation regarding the issue.

Four years after the Texas case, this issue finds itself before the federal courts yet again, this time in New Orleans. Again the Obama administration is arguing that warrantless tracking of cell phones is entirely constitutional and does not violate any privacy expectations. In fact, federal prosecutors are maintaining that law enforcement should be able to obtain minute-by-minute movements of such devices for up to 60 days at a time as part of an investigative proceeding. Information to be gleaned by such close monitoring, they argue, involves medical treatments, political associations, religious convictions and even potential indiscretions such as adultery.

Advocates of warrantless searches argue that requiring police to obtain a warrant prior to tracking would only serve to hinder law enforcement’s ability to obtain valuable and crucial information relating to investigations of serious crimes. They state that because a cell phone provider stores and records information regarding cell phone location and usage, and because customers voluntarily convey information to their wireless provider by using their cell phone, that customer, upon signing a cell phone contract, has no reasonable expectation of privacy regarding their mobile device. They maintain that as long as law enforcement is able to demonstrate that the cell phone records are relevant and material to an ongoing investigation, no constitutional rights are violated.

On the other hand, individuals who oppose warrantless searches suggest that while tracking for a period of a few weeks might be constitutional, carrying out the period for over two months violates any expectation of privacy cell phone users may have.

While there is much debate in the Senate regarding this issue, with Democrats vetoing required warrants and Republicans introducing pro-warrant legislation, it does not appear as if the issue is soon to reach a resolution. In an age where an individual’s every movement and conversation can sometimes be traced using technology, whether that be through cell phone records, Facebook, Twitter, or otherwise, it seems as if some limits should be placed on the government’s ability to scrutinize every move of the American public. It is hard to believe that an unsuspecting customer using his or her cell phone or updating a status online impliedly renounces the right to privacy, and essentially acquiesces to having every move subject to the investigative techniques of law enforcement.