By Richard B. Newman

On Dec. 23, 2010, a magistrate judge of the U.S. District Court for the Eastern District of New York ruled that mobile telephone users possess a ?reasonable expectation of privacy? in the location information created by their calls and text messages (In the Matter of an Application of the USA for an Order Authorizing the Release of Historical Cell-Site Information, E.D.N.Y., 1:10-mc-00897-JO, 12/23/10). 

As a result of the aforementioned ?reasonable expectation of privacy,? the magistrate held that the release of mobile telephone records may not occur unless and until the Fourth Amendment is satisfied. 

In short, this means that a showing of ?probable cause? to believe that the records will contain evidence of a criminal offense must be established.

Calling time
To summarize the facts of the aforementioned legal matter, the government sought in excess of 100 days of access to ?all call and text messages to and from a certain mobile telephone? belonging to an AT&T Wireless subscriber. 

Arguably, pursuant to the Stored Communications Act (18 U.S.C. §2703), the government is permitted access to cellular telephone records upon a showing of ?specific and articulable facts showing that there are reasonable grounds? to believe that the records sought would aid an ongoing criminal investigation. 

Nevertheless, the the magistrate judge stated that permitting access to such records upon a showing of anything less than probable cause would violate the Fourth Amendment of the U.S. Constitution which pertains to unreasonable searches and seizures when the searched party has a reasonable expectation of privacy.

The holding above becomes even more interesting when one considers that it was similar to a previous ruling by the same magistrate judge (CSI Brooklyn 2010, 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010). 

While the CSI Brooklyn decision was subsequently overturned by a U.S. District Court judge, the reversal was not accompanied by an opinion. 

Thus, the magistrate judge stated that although he was reluctant to issue a ruling that is inconsistent with an order issued by a federal district court, the fact that the judge failed to set forth and explain the reason for the ruling, coupled with the issuance of recent developments and germane legal opinions pertaining to these issues, led him to conclude that he possessed sufficient latitude to interpret the law according to his own analysis. 

According to the magistrate judge, the most notable among the aforementioned developments was the Sixth Circuit?s opinion in United States v. Warshak, No. 08-3997 (6th Cir. Dec. 14, 2010)(15 ECLR 1925, 12/22/10), where it was recognized that Internet users had a protectable Fourth Amendment right in stored emails. 

The Warshak court determined that a third-party?s access to the email messages did not extinguish the subscribers? reasonable expectation of privacy. 

As a result, the Warshak court distinguished and declined to follow United States v. Miller, 425 U.S. 435 (1976), a case in which the Supreme Court held that a bank depositor does not have a reasonable expectation of privacy in the contents of bank records, checks and deposit slips. 

In Miller, the court held that because the contents of the safety deposit box was were disclosed to the bank employee?s during the ordinary course of business, then there was no expectation of privacy in the box.

In the box
The Warshak court distinguished Miller on two separate grounds. 

First, it said that while a safety deposit box held only ?simple business records,? the email records of the subscribers held a ?potential unlimited variety of confidential communications.? 

Secondly, the Warshak court noted that the third-party service provider did not have occasion to, or a reason to, view the contents of the subscriber?s email in the ordinary course of business. 

In the Dec. 23, 2010 matter, the magistrate judge said that location concerning an individual?s whereabouts is ?not a simple business record? because ?it can effectively convey details that reveal the most sensitive information about a person?s life?information that goes far and beyond the ordinary course of the service provider?s business.?

Richard B. Newman is managing partner at Hinch Newman LLP, San Diego. Reach him at .