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Cell Phone Information: Police Investigators Can Grab Tons of Personal Information Off Smart Phones Without a Warrant

The mysterious shooting deaths of two Kaufman County prosecutors, as well as one of their wives, is taking up lots of media coverage as well as lots of chatter around Dallas area courthouse hallways.  The investigation into these deaths is ongoing, and there’s no clear answer as to what has happened here.

You’ve probably heard about how Michael McClelland and his wife, Cynthia, were shot to death last Saturday; McClelland was the District Attorney of Kaufman County.  One of his assistant DAs, Mark Hasse, was shot to death on January 31, 2013.  The investigations into all three deaths are intertwined.  State and federal authorities are all on the job.

The Dallas Morning News’ Crime blog is providing great coverage of the Kaufman County slayings, if you are interested in following the case(s).

Kaufman County Investigations Spotlight Criminal Investigations Use of Cell Phone Records In Building Their Case

For future criminal defense cases, one important detail is popping up during all this coverage: the ability of investigators to access cell phone records in their criminal investigations.

The Fort Worth Telegram has obtained and shared the affidavit that was submitted in the Kaufman County investigation (read it here):  the Texas Rangers are seeking not only the cell phone records of the deceased but also records of all cellphone traffic near their home in Forney, where the shootings occurred.

(If you were driving around that area over the weekend with your cell phone, do you think the Texas Rangers get to know that information without your okay?)

Cell Phones Are a Different Kind of Property Since They Hold So Much Digital Information

The American Civil Liberties Union (ACLU) recently revealed just how much law enforcement is able to pull off any smart phone they come across.  The ACLU published a list of the items that the federal government was able to pull from a single phone search without a search warrant.

The federal government went through the bedroom of a suspect in a drug investigation and one of the ICE agents grabbed up an iPhone while they were there.  From that one cell phone, without any search warrant where a judge approved them looking at this personal information, the government was able to find all this off that one phone:

  1. call activity — everyone the person called, and everyone who  called them (and how long each chat took);
  2. phone book directory information — every number he looked up (pizza joints, parents, other people, whoever);
  3. stored voicemails and text messages — that’s right: the agents could listen to all the phone’s voice mails and read all the texts;
  4. photos and videos — they could watch all the stored videos and check out every single photo stored on the phone;
  5. apps — they could skip through all the apps stored on the phone and gather more personal information there;
  6. eight different passwords — they could grab all the person’s passwords; and
  7. they could track where the person had traveled through 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.

Think about that — without a warrant, the ICE agent got all this information off that one phone.  Something that otherwise, the federal investigators would clearly have had to get a search warrant to obtain.

Location information, the last item on this list and what some might argue is the least intrusive, is still arguably a violation of privacy rights protected by the Fourth Amendment.   This issue is key to the Kaufman County investigation — and something that hopefully media coverage will bring to the attention of a lot more people out there.

What Does Eric Holder Say?  Department of Justice Holds Position That Warrantless Searches of Cell Phones Are Okay

The federal government’s legal position on searching cell phones without the protection of a judge approving the search via a search warrant is clear:  the Department of Justice and Attorney General Eric Holder take the position that no one has a “reasonable expectation of privacy” for whatever is stored on their cellphone – at least insofar as location information.

(Do you agree with this?)

Texas Doesn’t Agree With the Feds on Cell Phone Information — You Need a Warrant Here in Texas

Texas isn’t as free with tossing around someone’s privacy rights as the Justice Department appears to be.  Right now, a proposed law is making its way through the Texas Legislature  that will amend the Texas Code of Criminal Procedure to force all law enforcement agencies to get a search warrant signed by a Texas judge before they can grab and use location information on a cellphone.  The law would also make cellphone companies reveal how many requests for location information they get from law enforcement.

Also, at least one federal judge down in the Rio Grande Valley is fighting against law enforcement using cellphone data without a search warrant.  As we reported earlier, the Honorable Brian L. Owsley, U.S. Magistrate for the United States District Court for the Southern District of Texas, is ruling against authorities use of Stingrays and Cell Phone Tower dumps without an official search warrant.

Right now, the investigation is hot in the Kaufman County D.A. Shootings and law enforcement from various jurisdictions have formed a task force to track down the persons responsible for killing two prosecutors as well as one of their spouses.

Seems likely that this sort of posse will be happy to use cell phone information to track down suspects — but what is happening to the privacy rights of all of us in the meantime?

Here in Texas, what will happen to the Fourth Amendment right to protection from invasive search and seizure? Your privacy rights are at risk.

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