cell towerMost of us use our cell phones daily without ever thinking that someone may be tracking where and how often we use them. A federal court of appeals, however, ruled on Thursday that the Fourth Amendment does not require government officials to have probable cause before requesting records detailing when and where a cell phone was used.

The opinion does not allow government officials to receive this information on just anyone. Instead, the government may seek the information under a federal statute that requires them to show “reasonable grounds” to believe that the information sought is “relevant and material to an ongoing criminal investigation.” The Court recognized that this standard is vague and held only that it amounts to something less than probable cause.

The cell phone records accessible under this rule identify the cell phone tower to which the phone was connected at the beginning and the end of phone calls. Cell phone carriers generally keep these records for around eighteen months. Lower courts have reached conflicting decisions on whether probable cause is required to access this information and will likely continue to do so.

In the end, this decision does not change much about the law. The Fourth Amendment prohibits searches without probable cause when a person has a “reasonable expectation of privacy” in the area to be searched. The Third Circuit’s opinion does not prohibit lower courts from requiring probable cause or a warrant to access these records; it only states that the law does not require courts to do so in every situation, as the ACLU and Electronic Frontier Foundation argued. Lower courts may still require probable cause when appropriate under traditional Fourth Amendment principles. The courts may allow access to the information on a showing less than probable cause in situations that do not implicate the Fourth Amendment.

The debate over technology and the Fourth Amendment’s protection against unreasonable searches will only get more complicated as technology advances. As technology advances, our concept of what is reasonably private changes. It will be interesting to see how courts react to these challenges in the future.

Kate Kliebert

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