For years, we have all made jokes about the NSA listening in on our phone calls. The NSA believed that it had the power to collect metadata from phone calls under the Patriot Act. On May 7, 2015, The Second Circuit Court of Appeal said the NSA was wrong and the collection of this information is illegal.
I don't know why Judge Lynch's order comes as a surprise. For many of us, our phone records contain a large part lives. In America, the Constitution gives us a reasonable expectation of privacy, even though this protect has been eroded in recent years. Without a showing that the disclosure of your specific phone data is necessary, for whatever the reason the government claims, this right to privacy should be protected. I agree with the Court's ruling.
What is funny is that different generations of people have a different expectation of privacy. Over the last couple of years, I lectured to 7th grade history students during Florida's constitution week. What was clear to me is that 7th graders think its okay for others to listen their phone calls, pick-up their phones and scroll through the texts, and post each other's information on social media. They were not put off at all with the idea that the government may be listening to their calls or monitoring their texts.
If a lawyer or the government (federal or state) needs cell phone data whether it be a call record or GPS coordinates, there is a legal way to retrieve this information. If it is a governmental agency or law enforcement they can petition a judge for an investigatory subpoena and serve the subpoena on the phone company.
The Legal Procedure in Civil Matters
If I need to obtain this information, I must obtain a release from the other party allowing me obtain this information. If a lawsuit has been filed, I can issue a subpoena to the phone company. If the information is held by a State of Florida agency, I can do a public records request.
By Agreement of the Parties
By far the easiest way to get this information is by agreement of the parties. Under this circumstance, the other party will sign an authorization directing the third party company to release the specified information. Most of the time this does not happen because other people or companies are not going to give you this information without a court order or subpoena.
Public Records or Chapter 119 Request
Under Florida Law, and the area of law that I practice, I can request 911 calls related to accidents or other matters under Florida Sunshine Act, which is found in Chapter 119, Florida Statutes. Here's a sample letter that I send to local law enforacement after an accident.
To: Public Information Officer
Lake County Sheriff's Department
Re : Time, Date, Location, Client Name, Accident Report Number
Dear Public Information Officer:
We have been retained by ________________ in regards to the above noted accident. Pursuant to Chapter 119, Florida Statutes, we request the following:
The 911 call log for the incident (if a 911 call)
- All audio calls and recordings related to the subject accident
- All calls to the (specific location) from (60 days before to the day of the accident)
- Thank you. If there is a charge for this information, kindly bill the undersigned.
Many law enforcement agencies do not store audio recordings longer than 30-days so this information must be requested as soon as possible.
Preparing a Subpoena for cell phone records
Probably the best way to get the information you are looking for from a third party phone company is through the subpoena process. All phone companies have specific procedures to follow when subpoenaing these records. You can find this information on the web. The problem with a subpoena is that you must first file a lawsuit. Some companies like Metro PCS purge their records pretty frequently so if you wait a long time, the records may not be available when subpoenaed.
Semi-Accident and Commercial Trucking Cases
When we initially receive the case, we send a preservation of evidence letter to the driver and motor carrier for hire (trucking company), demanding that they preserve driver logs, tool receipts, Bills of Lading, GPS and on board computer data (QUALCOM). We also demand that they preserve the driver's personal cell phone records for 24 hours before to 24 hours after the crash.
Even though we are not able to get this information from the truck driver or trucking company during the pre-suit process, we have timely put them on notice to preserve this evidence that we should be able to get during a lawsuit.
When using subpoenas to cell phone carriers, include the following in your subpoena:
- All inbound and outbound numbers used
- All inbound and outbound SMS and text messages
- All times and usage durations for calls and texts
- Connection date and time
- The tower ID and GPS location during each indicated transmission
- The plan code (M2M- Mobile to Mobile)
- Type of data accessed (visual voice mail or mobile data)
- Cell tower number and GPS location for all cell towers
Our constitutional right to privacy is important and should never be taken for granted. There are steps that need to be taken in order to compel release of this information. It appears that the 2nd Circuit Court of Appeals, agrees that even the government should comply with the rules.
No doubt obtaining phone company information can be helpful in personal injury matters, however, we have to dot our I's and cross our T's to make sure this information is received legally.
If you have any questions about the use of phone records in a Leesburg, Florida personal injury matter, Call Guy S. DiMartino, DC, JD at (352) 267-9168.
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