Asset Protection BLOG - Mark Nestmann: You Have Near-Zero Expectation of Privacy in Your Cell Phone Records [Part I]

If you think that any of the information in your cell phone is private, think again. It's not.

The calling records on your cell phone have "no expectation of privacy," according to a court decision issued by a federal court in Kansas. And under the court's reasoning, it's possible that other data stored on modern cell phones have no expectation of privacy, either.

In the Kansas case, police arrested a criminal suspect and took him into custody. They seized his cell phone, and without obtaining a warrant, searched its phone book directory, the recent calls directory, and the picture and video file directory. While the suspect had no information in the picture and video file directory, police recorded five names in the phone directory and 20 telephone numbers in the recent calls directory. Prosecutors used that information against the defendant in a subsequent criminal proceeding, and the court upheld its use.

Several factors converged to produce this legal result. Under the "search incident to arrest doctrine," the Supreme Court has held that police can search someone they are arresting. Police may open any "containers" the person being arrested has in their pockets or otherwise is carrying. This is true even if no probable cause exists that the containers contain anything illegal. In the Kansas case, the "container" was the suspect's cell phone.

The Supreme Court has also declared that you have no expectation of privacy in the telephone numbers you dial. When you dial a telephone number, you must reveal that number to your telephone company. Since you voluntarily convey that information, you assume the risk that it might be revealed to police. In the Kansas case, the dialing records included not only outgoing calls, but also incoming and missed calls. In addition, police didn't obtain the records from the telephone company or incident to a search warrant, but from the phone itself. Nonetheless, the court declared the search legal.

What about other data on cell phones? If a cell phone is truly a "container," police can search and retrieve any information on it incident to your arrest for any offense whatsoever—even a minor traffic violation. There is no expectation of privacy for any of your data. Your address book, your text messages, your photos, your video files, your Web browsing records, and your e-mail messages are all open to warrantless inspection. Any information found there can be used against you in a subsequent criminal case.

If you think this is deplorable, I share your outrage. Fortunately, not all courts agree with the decision of the federal court in Kansas, but if you're arrested, and have your cell phone with you, be prepared for police to use any information they find on it against you.