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Limited Privacy Protections for Cell Phone Data in Georgia

Posted by Sean A. Black | Nov 12, 2012 | 0 Comments

In Registe v. State, the Georgia Supreme Court decided on November 5, 2012, that a person has almost no privacy interest or protections regarding their ownership and use of a cell phone.

Columbus police were investigating a murder case involving two victims.  A witness told them that one of the victims was supposed to be meeting a guy named Mike and gave the police what he believed to be Mike's telephone number.

The police determined that the telephone number was one serviced by Cricket Communications, a cell phone provider.  The police faxed a plea to Cricket stating that the subscriber for that number may have been the last person to meet with the murder victim and could pose an immediate danger to any law enforcement officer coming in contact with the subscriber and requesting that Cricket disclose information it had about the owner of the phone.

Cricket voluntarily provided its account records including the name of the account holder and some calling history.  The name of the account holder was an alias.  The police used the calling records of the cell phone to cold call numbers to interview people about their contact with the subscriber.   They received reports from these witnesses that one had picked up the defendant near the shooting scene and that others had seen the defendant with blood spatters on his clothing.

The defendant sought to prevent use of the cell phone records and the evidence derived from the records in his prosecution.   He based his attack on a number of grounds.

The Georgia Supreme Court found that he had no Fourth Amendment rights or expectation of privacy regarding the cell phone records, because they were business records owned by the telephone company not the defendant.  The defendant was prevented from asserting any Fourth Amendment grounds to protect his calling records.

The defendant also asserted that the disclosure did not comply with state and federal laws regarding disclosure of electronic communications records to the government.

18 USC § 2701 et seq, addresses mandatory and voluntary disclosure of such records.

18 USC § 2702 (c)(4) allows voluntary release of "non-content" records to a governmental entity if the provider in good faith believes that an emergency involving danger of death or serious physical injury to any person requires the disclosure.

The Georgia Supreme Court found that even if the conditions for voluntary release were not present, that federal law  would not authorize the defendant to obtain suppression of the wrongfully disclosed evidence.  The federal laws, instead, provide for a civil suit for violations.  Registe pointed out however that OCGA § 16-11-67 would prevent the use of such records if it were obtained improperly.

The court did not address this contention.

Instead, it found that the emergency conditions were present at least from the perspective of Cricket Communications.

The federal standard is whether the cell phone provider has a good faith belief that such an emergency exists.  In this regard, the provider relies wholly upon the assertions of the law enforcement agency making the request.  The good faith of the law enforcement agency making the request for voluntary disclosure does not seem to be a part of the analysis.

In this case, there is a large leap between the suspect's contact with the victims and his posing an immediate danger to any other person.  There is no evidence of such a danger, simply the conclusion of the investigating officer.  After all, other people saw him with blood on his person and one gave him a ride and none were subjected to physical attack or threats.

Most importantly, there is no mechanism to review the actions of the law enforcement officer and only limited review of the cooperation of the cell phone provider.  From the statute, the decision of the provider is proper if it acts in good faith.  Bad faith or exaggeration by the law enforcement officer would, therefore, not invalidate the disclosure.  The application for the information and the contents of the request are not subject to review or disclosure to the subscriber.  In many cases, a person whose records have been accessed may never know that the access has occurred.

The fact that a law enforcement officer never has to go before a judge to justify the access of such records creates an opportunity for misconduct and lack of oversight.

It should be considered that other records such as banking records and credit card records have been subjected to the same analysis.  Courts have found that individuals have no Fourth Amendment rights to such information even though much of the public believes that this type of information is private and personal.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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