Your Cell Phone Can Be Used To Put You in a Cell Block
(LAW.COM) Authorities say they have evidence that Luis Soto was near a bank that was robbed in Berlin, Conn. Was there an eyewitness? No.
Soto was reportedly betrayed by his cell phone. Federal authorities sought reams of records from phone companies. They said the data — which lists which cell towers handled certain calls — revealed that Soto was not only close to the bank, but he was close to other suspects in the robbery.
Should law enforcement agencies be able to obtain this sort of information without a warrant? That’s a question that will soon be debated in a U.S. District Court in Connecticut.
Defense lawyers and advocacy groups like the American Civil Liberties Union and the Electronic Frontier Foundation say the way the government obtained the cell information constitutes an unreasonable search and seizure.
“It really is a search, a modern-day search,” said David McGuire, an attorney with the Connecticut chapter of the ACLU. “It’s not really any different in our perspective than … [police] going in and searching a location without a warrant.”
But while Americans might reasonably expect that the government can’t eavesdrop on conversations without a warrant, law enforcement officials say people have no reasonable expectation that their cell phone’s whereabouts is a private matter.
Luis Soto, of Suffield, and his younger brother Felix Soto, of Manchester, Conn., were charged in a 2008 bank heist at a Webster Bank in Berlin. Luis Soto was also charged in connection with a Windsor bank robbery earlier that month. The brothers reportedly netted about $90,000.
Federal investigators, while probing those and three other bank robberies in that time frame, obtained the cell site location information (CSLI) and phone records of 169 cell phone numbers from nine separate providers.
Among those whose cell phone information was collected was Luis Soto. Assistant Federal Defender Terence S. Ward claims the U.S. Attorney’s Office in Connecticut will try to use that information to prove Soto was in the vicinity of the Berlin bank robbery and that he was in close proximity to other alleged participants in the robbery.
“When all is said and done, the government hopes to use the CSLI to persuade the jury that these recreated movements and communications demonstrate that Soto acted in concert with the others and committed the robbery,” Ward said in court documents.
Ward has filed a motion to suppress his client’s location information obtained through the cell phone records. He argues that the government should have had to go before a judge and show probable cause and obtain a warrant before it was permitted to track the whereabouts of the alleged defendants through their cell phone records.
“The scope of these orders is surprising to say the least, and the time to consider what is mass surveillance and how it interrelates with the Fourth Amendment has arrived,” wrote Ward.
Assistant U.S. Attorney Michael J. Gustafson, however, argues that no probable cause was needed, that investigators needed to show only that the records they sought were “relevant and material to an ongoing criminal investigation.”
Though many cell phones now have Global Positioning System technology, that was not in play here and so authorities can’t pinpoint the exact location of the suspects who made calls. Instead, they relied on the location of cell towers, which can be anywhere from a half mile to 10 miles apart, depending on whether they’re in urban or rural areas. Figuring out which tower handles a call offers a general location of the caller.
In his case, the phone company “business records showed simply the date and times of calls, the phone numbers involved in the calls, the duration of the calls, and the cell towers used to facilitate the calls,” Gustafson wrote in a reply to Ward’s motion to suppress the records. “Critically, these business records did not reveal the content of the conversations, the participants in the conversations, or the precise location of the phone during conversations.”
Still, McGuire, the ACLU attorney, said the organization was troubled that the government could obtain the records without a finding of probable cause. He said the relevant to an ongoing investigation standard is too weak. “Anything can be relevant” to an investigation, said McGuire. “Relevancy is a broad concept.”
Just before this case, McGuire said the ACLU had already sent a letter to Connecticut Chief U.S. District Court Judge Alvin Thompson to express how “troubled” it was that cell site information was being readily turned over to police and prosecutors without a warrant being issued.
Typically, said McGuire, orders authorizing the gathering of the cell information are sealed and defendants are unable to challenge the ruling because they are unaware it even exists. Because a motion to suppress was filed in the Soto case, the ACLU decided to submit an amicus brief in support of the motion.
McGuire said that since about 90 percent of the U.S. population now has a cell phone, the issue of their whereabouts being tracked through the phones will become “a true threat to people’s privacy.”
In one of the few published opinions broaching this topic, the Western District of Pennsylvania held that the government must obtain a search warrant to access the CSLI information. The decision is under appeal in the 3rd Circuit.