For many people, the thought of someone else rummaging through your smartphone is the modern-day equivalent of that nightmare in which you show up to high school naked. But unlike your teenage anxieties, cellphone evidence can actually show up in court. While cellphones are protected under the Fourth Amendment's unreasonable search and seizure laws, phone records can be used in a court of law if it's very likely that they contain evidence.
In cases where the device itself is nowhere to be found, remote cellphone records come into play – your wireless provider keeps records on where and when you make calls, send or receive texts or transfer data (including emails), as well as the content of those texts and emails. All of that information can be accessed for legal purposes.
Cellphone Records: The Basics
Outside of information actually stored on the device, call detail records maintained by wireless service providers contain phone and data activity duration down to the second, even recording non-billable activity such as outgoing calls that failed to connect. These records don't, however, include the actual content of phone calls or text messages.
It's not uncommon for cellphone records to play a role in both civil and criminal cases; they are often used as evidence in distracted driving or insurance-related cases, for instance. In addition to call, text and data transfer times, location information may also be used as evidence. When search results are used as evidence, though, the court is likely to favor recent results and may dismiss older data.
Legal Methods for Obtaining Records
With probable cause and a warrant, a police officer may search your cellphone, and any evidence they find on it is considered admissible. So long as they have a subpoena, federal agencies may retrieve phone records in connection with criminal or civil enforcement action, right down to the search results on your browser.
Likewise, cellphone companies are compelled to obey federal subpoenas or warrants to pull up phone records, and agencies like the FBI and NSA don't even need that warrant to request cell records related to terrorism prevention, per the Patriot Act of 2001. It's worth noting that if your cellphone records have been delivered to the FBI or NSA, it's illegal for your cellphone company to even publicly disclose the fact that you're being investigated.
Subpoena power is not limited to the feds, though; even in cases as mundane as civil divorce, either party may subpoena cellphone records. Alternatively, an attorney may request them during the case's discovery phase. Of course, it doesn't have to be all that complicated – cellphone records can also be obtained via consent, such as a written authorization.
Access Under the Freedom of Information Act
The federal Freedom of Information Act grants anyone the right to request access to federal agency records and information, with a few exceptions pertaining to national security, law enforcement records, trade secrets and the like. Today, even government officials regularly use their personal smartphones for work-related purposes, and these communications are increasingly recognized as matters of public record under FOIA. As such, you may be able to obtain some cellphone records of this nature simply by submitting a public records request.
Access to Data Pertaining to 911 Calls
"E911" laws require cellphone service providers to hand over GPS tracking data pertaining to 911 calls, which can be location tracked even without the cellphone owner's consent.
Obtaining Cell Phone Records Without a Lawsuit
After all the legalese smoke has cleared, you may be asking yourself how to get phone records when you're not currently involved in a lawsuit. Depending on the provider, getting your call detail records may be as easy as accessing the data usage stats on your smartphone. Under your phone's usage detail settings, look for the option to download usage records. When that option doesn't exist, the wireless account holder may need to request cellphone records via a notarized letter to the service provider.
In most cases, the person seeking phone records needs a subpoena, a warrant or probable cause to obtain cellphone records, though voluntary turnover through discovery is an option in a civil case, if the records belong to one of the parties.
- Attorney at Law Magazine: Cell Phone Records as Evidence in Legal Cases
- Sweeney Merrigan Law, LLP: When Can Cell Phone Search Results Be Used as Evidence?
- Jackson & Wilson Trial Lawyers: How to Legally Get Smartphone Records
- TeleMessage: The Freedom of Information Act and Secure Text Message Archiving
- U.S. Department of State: The Freedom of Information Act
- Lawyers.com: How Much Privacy Do Cell Phone Users Have?
- T-Mobile: Print Phone Records