Tuesday, December 21, 2010

Do You Have a Reasonable Expectation of Privacy in the contents of Your Phone if Someone else Pays the Bills?

The ownership of a cell phone is becoming increasingly important in determining whether a user has a reasonable expectation of privacy in the contents and records.

Determining who actually owns and controls a phone can be confusing, and the answer can lead to very different results. This is illustrated by a recent Pennsylvania case, Commonwealth v. Benson.

The Benson case involves a robbery of a seventy-seven year old woman in her home in Pennsylvania. The defendant broke into her home. When she returned home, he grabbed her, her on a sofa, and demanded money. He attempted to lock her up and stole various items, including jewelry, a gift card, and cash.

The issue that caught my eye was the use, at trial, of cell phone call records. The phone in question was owned by the defendant's girlfriend. The defendant was, however, the primary user of the phone. The girlfriend gave come records to the police, and the police later obtained additional records from a search warrant issued to the cell phone provider.

This case is the mirror image of a recent Texas case I wrote about. The issue in the Texas case was whether people maintain a reasonable expectation of privacy when they allow someone else to use their phone. The issue in this case was whether the defendant had a reasonable expectation of privacy in the contents of a cell phone owner by another.

The Fourth Amendment analysis begins with a 1979 Supreme Court case, Maryland v. Smith. In that case, the court held that the police do not need a warrant to obtain telephone numbers from a phone company because, like bank records and other business records, they are provided voluntarily to a third party (i.e. the phone company).

A Pennsylvania twist to this case is that the Pennsylvania Supreme Court does not follow Smith in interpreting the Pennsylvania constitution, and requires that the police obtain a warrant for phone records. So under Pennsylvania law, a person has a reasonable expectation of privacy in his own cellular telephone records. But, does a person have a reasonable expectation of privacy in the telephone records when somebody else owns the phone? The answer, according to the Benson court, is no. The court said:

while [the defendant] had use of the telephone, the bills in question were not his telephone bills. The telephone in question was [his girlfriend's] and she is the one who received and had the obligation to pay the telephone bills containing the records of telephone numbers dialed. [The defendant] had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

My take is that the answer is not as simple as the Pennsylvania court suggests. Many people use phones on shared family plans. It is hard to imagine that person has no reasonable expectation of privacy in cell phone records if the spouse is the main account holder and pays the bills.

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