Beware: Federal Investigators Can Know Where You Roam in Texas, Louisiana and Mississippi

Recently newsworthy: the competing interests of privacy versus security when it comes to the government’s collection of telephone call data from Verizon and other carriers. A recent decision by the U.S. Court of Appeals for the 5th Circuit highlights the issue.

The case began in Texas when federal government officials tried to get court orders to compel cell phone providers to divulge two months of call location data for specific phone numbers to be used by criminal investigators without a showing of probable cause. No phone call content was requested, only the cell tower locations servicing the initiation of calls. The local district court refused to grant the orders, reasoning that such a request without probable cause violated the Fourth Amendment of the U.S. Constitution. As New York constitutional rights attorneys, we support the Texas district court’s decision to uphold the constitutional rights of its citizens.

However, on appeal, the 5th Circuit ruled in a 2-to-1 decision that the release of cell call location data did not violate the Fourth Amendment because:

• The location data are business records of the cellular carriers used for implementation of their business.
• Cell phone users understand that calls from their phones are transmitted to nearby cell towers to be connected and thus know that they are providing their location to their phone service provider when placing calls.
• Cell phone users make calls voluntarily. They are not compelled to use cell phones.

At present, the holding is limited to the jurisdiction of the 5th Circuit (Texas, Louisiana and Mississippi) and only applicable to requests for specific phone numbers.

The U.S. Supreme Court may be asked to address these issues on a national basis.