In 2021, Pew Research Center conducted a survey that indicated that 85% of United States adults own a smartphone. Because of exponentially increasing technology, a digital footprint is often left without a smartphone user’s knowledge or consent. As the world enters an Orwellian age where businesses track likes, comments, and Google-search history to better tailor its advertisements toward consumers, a pressing question is, “Who else is tracking this data?” In 2018, the United States Supreme Court answered that question in part by holding that law enforcement may not track certain data, at least not without violating a person’s Constitutional rights. In other words, the government may not unilaterally intercept private information stored on an individual’s cell phone without first obtaining a valid search warrant.
Your Locations Can be Tracked Through Your Cell Phone for Days, Months, Even Years
Smartphones access the internet and thus have an overwhelming ability to communicate with the world through various networks. Each time a smartphone requires a connection, it automatically searches for the strongest, and nearest, set of radio antennas known as cell sites. As a result, each time a smartphone connects to a cell site, it leaves a footprint of its physical location. This footprint, known as “Cell Site Location Information,” or “CSLI”, is stored by each phone provider for up to five years. Accordingly, absent turning off the phone completely, sharing CSLI is inevitable. Given the accessibility of this information, law enforcement, other government entities, and private third parties can record and detect movements, patterns, and other highly personal information at any time. While you may not realize it, your smartphone may provide a “detailed chronicle of a person’s physical presence, compiled every day, every moment, over several years” as was recognized by the United State Supreme Court in the 2018 case of Carpenter v. United States.
How does this affect everyday citizens? When investigating a crime, law enforcement has historically been able to retroactively search the immediate area of a crime scene for smartphones that had left its footprint by requesting such information directly from cell phone providers. Accordingly, these companies have willingly shared CSLI, leading to arrests or suspicions against innocent civilians who are only guilty of being in the wrong place at the wrong time. In the event you are charged with a crime you did not commit; it is important to have an attorney who can navigate the nuances of New Jersey criminal law. Before acquiring an attorney, here is some simple advice:
Understand Your Rights
If you are ever asked to provide verbal or written consent for the release of Cell Site Location Information, ask for an attorney first. Law enforcement may not acquire such information without a warrant, unless a suspect gives law enforcement permission, implied or express, to do so. While exceptions to the warrant requirement exist, the overarching principle of the Fourth Amendment protects individuals from unreasonable searches and seizures at the hands of the government. Thanks to Carpenter, this right also applies to CSLI. Further, the New Jersey State Constitution further protects privacy interests in the location of an individual’s cell phone.
Take Preventative Action to Secure Your Privacy
First, secure your phone with a password that is required to access its contents. Cell phone manufacturers such as Android and Apple give its customers some control over location tracking through the phone’s settings. But remain cautious: while a phone manufacturer may take pride in its privacy controls, the same may not be for the phone applications themselves. Therefore, it is important to review your phone application settings to understand how your location history is being tracked.
Secure Counsel at the Earliest Possible Time
Early action by an attorney may avoid an unwarranted criminal charge, indictment, and/or may prevent action against a professional license. Significantly, early action may save you the emotional and economic consequences of defending a criminal charge, indictment, or civil or administrative litigation.
If you or someone you know has been asked to release your cell phone data, or has otherwise been accused of any crime, contact the Law Office of Lyons & Associates, P.C. With offices located in Somerville, Morristown, and Freehold, Lyons & Associates has a statewide criminal defense practice. We place a premium on personalized service and attention. For a private consultation, contact us by e-mail, view our website at https://www.lyonspc.com/criminal-defense/ and https://www.lyonspc.com/eric-marcy/, or call our office at 908-575-9777.
Carpenter v. United States, 138 S. Ct. 2206 (2018)
Katz v. United States, 389 U.S. 347 (1967)
State v. Earls, 70 A.3d 630 (N.J. 2013)
State v. Lunsford, 141 A.3d 270 (N.J. 2016)
ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on the Const., C.R., and C.L. of the H. Comm. on the Judiciary, 111th Cong. 10, (2010) (testimony of Associate Professor of Comput. and Info. Sci. and Dir. of the Distributed Computing Lab’y Matt Blaze, Univ. of Pa.)