Warrantless Search of Mobile Phone Metadata

Police searching your phone - homelandsecuritynewswire.com

In many cases courts have ruled police do not need a warrant to search  numbers dialed on a phone, only to intercept voice calls.   This is called the  “third party doctrine” for a Search of Mobile Phone Metadata.   In Smith v. Maryland, 422 U.S. 735 (1979), the U.S. Supreme Court reasoned that Smith has no privacy protection for numbers dialed on her phone because she voluntarily gave this information to the phone carrier.

Since the advent of mobile phones, courts have differed whether the third party doctrine applies to Mobile Phone Metadata (historical cell phone location data ).    That is, data you transmit to cell phone providers when your phone is on.   To initiate and receive calls, send or receive texts, and using location based apps such as Fourscore or Waze, my cell phone periodically and automatically sends a signal to the nearest cell phone tower.

A detailed analysis can be found on casetext.com.

For Ohio and surrounding states, the U.S. Court of Appeals for the Sixth Circuit ruled  recently that police should have obtained a search warrant for emails of Steven Warshak, a Cincinnati businessman convicted of wire fraud in part because his emails were used as evidence.   See  U.S. v. Warshak,.   The decision applies right here in the Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee.  Google, Microsoft and Yahoo routinely refuse to turn over emails without a warrant and quote the ruling.

It's unclear whether the ruling extends from emails Mobile Phone Metadata.

If you don't want to broadcast your location to law enforcement or the public, the safest thing to do is leave your phone turned off.  Use caution when enabling location based apps.

If you're the subject of an investigation of your mobile phone metadata, please contact us here at Wolfe Legal Services.