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Concerns rise over law enforcement access to cellphone information

Posted on in Criminal Defense

Santa Cruz criminal defense lawyers know that privacy issues in the technological age are complex. The cellphone carriers say that many police requests for cellphone information arrive without any warrant. Prosecutors may file a subpoena for the records, but such subpoenas are not passed before the scrutiny of a judge, as is needed to obtain a warrant.

One U.S. Senator from the Midwest has asked the Justice Department how many times the agency has made a request for location information from a cellphone carrier. He also has asked the Justice Department what legal standard applies to making such a request.

Of great concern to many, including lawmakers, is the use of cellphones in location tracking. Apparently the Justice Department responded that it does not keep tabs on the number of requests, but the agency claims that generally in criminal matters it seeks a court order for cellphone requests.

Nearly all of the cellphone carriers told an East Coast Representative from the U.S. House that they generally only respond to requests for information if a warrant is attached. Other carriers say that they will respond to requests under an administrative subpoena from a prosecutor. One carrier says that it has forwarded two inappropriate requests to the Federal Bureau of Investigation for review.

This blog has previously discussed the recent Supreme Court ruling on the requirement that law enforcement obtain a search warrant to lawfully use secret GPS tracking devices in criminal investigations. That decision was narrow in scope, and did not specifically address the GPS capabilities of a cellphone that a suspect knowingly has in his or her own possession.

When it comes to cellphones, many commentators say that the standards remain spotty across the nation and fall into a gray area for legal argument. The House and Senate had measures introduced last year regarding cellphone information issues, but neither measure ever made it out of committee.

Source: San Jose Mercury News, "Surveillance requests to cellphone carriers surge," Josh Lederman -Associated Press, July 9, 2012

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