Cell Phone Data: Your Rights and Privacy

Cell phone data is important for a number of reasons. A large percentage of divorce and other civil cases will rely on the cell phone records. However, one cannot simply make a phone call to the carrier and and get phone records. Likewise, criminal cases often times come down to evidence located on a cell phone device.

The process of getting records involves obtaining a subpoena in most cases. If, however, you would like to obtain your own cell records and you are the only account holder, then you cannot be denied. Keep in mind, however, many carriers do not maintain text messages beyond a certain date.

What do cell phone records show?

In addition to retaining the text message and numbers called, records include what cell tower was pinged as well as any internet interaction. But depending on the carrier/provider some data is stored a limited time while others do not store such things as text messages. Many times, because of the lack of federal regulations on cell phone data, crucial evidence in legal cases is lost and cannot be used because it is no longer available. Each cell phone carrier/provider has its own policies on what data is retained for what amount of time.

There also are cell phone lookup services. However, they cannot provide any type of privacy data such as text messages.

For instance, Verizon will keep data on internet interactions for up to a year as compared to AT&T which keeps the records for only 72 hours. Keep in mind that internet sessions are different than information obtained regarding any websites visited. And while Verizon will retain that data for up to 90 days, Sprint keeps both up to 60 days and T-Mobile does not store it at all. You can use this link for the chart provided by United States Department of Justice to the American Civil Liberties Union.

Who can access phone records?

Anyone can have access to phone records. If you are the sole owner of the account, you simply put the request in writing as per the policy of your carrier/provider. If there is a joint account and both parties do not agree then a court order, known as a subpoena, is necessary. Likewise, of course, the subpoena process is needed for law enforcement in criminal matters where evidence may be lingering in the data. This is because of the privacy issues as well as maintaining the integrity of the law on illegal search and seizures as guaranteed under the 4th Amendment of the U.S. Constitution.

How to subpoena cell phone records?

As a private person, if you need to obtain the cell records there first must be a lawsuit filed within the courts. In other words, you cannot simply go to the clerk of a court and request a subpoena for a fact or evidence finding fishing expedition. Once litigation has begun in the courts, then you may request the subpoena from the clerk of the court to be issued to the particular carrier/provider in question. Generally, there are sent to the “keeper” or “custodian” of records for the individual carrier/provider as set forth in 18 USC 2703 (c)(2) and (b) for certain situations. Each company has its own such person and office to which it would be addressed and mailed. So you need to check with the carrier/provider and review the process for to whom to deliver. Additionally, each state has laws governing how such a subpoena needs to be served. So check your states laws in that regard. It is suggested once litigation is filed in the proper court for your state, you contact the carrier/provider to get the correct information for the custodian/keeper of records. These offices are also sometimes known as a Legal Process Compliance Team for that company.

In criminal matters, the law enforcement agency handling the matter must also make requests via subpoena. Carries/providers are prohibited from just handing over information. So just like warrants are needed in certain situations to search premises or persons, subpoena for records must be served. In many cases, the time constraints are a hindrance as many companies do not retain all the necessary information for longer than they need to.

Below is a sketch of the chart as provided by the ACLU link:

AT&T: Call records 7 years, text message details 7 years, text message content is never stored, cell tower records indefinitely from 2008 to present, internet session information and destinations 72 hours.

T-Mobile: Call records 5 years; cell towers 4-6 months, text message details 5 years but only that there was a text sent. The messages are not kept nor are internet interactions.

Sprint: Call records, cell tower records 18 to 24 months, internet session and destination info for up to 60 days, text message details 18 months but they do not keep the message.

Verizon: Calls and cell towers used 1 year, text message details 1 year but the actual text message content between 3 to 5 days, internet session information for 1 year, websites visited for 90 days.