by Sasha VanDeGrift
Think all that data cell phone service providers collect on their customers stays private? Think again…
Recently, the Second District Court of Appeals held that cell phone customers have no reasonable expectation of privacy in records maintained by their cell phone service providers. State v. Neely, 2nd Dist. No. 24317, 2012-Ohio-212. (For the full Opinion, please see the following website:
In Neely, the defendant was indicted for trafficking in cocaine based on the records from his service provider, including:
1) his identity;
2) all of his incoming or outgoing calls; and
3) the duration of those calls.
The defendant moved to suppress that evidence, citing to State v. Smith, in which the Ohio Supreme Court held that the police may not search a person’s cell phone without a warrant, even if the person is lawfully under arrest, absent exigent circumstances such as risk to the officer’s safety or imminent destruction of evidence. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949. The defendant in Neely argued that the Smith case mandated the cell phone records from his service provider be suppressed as well.
The trial court disagreed. The reason? The prosecution followed the procedure set forth by the Electronic Communication Privacy Act, 18 U.S.C. § 2703(c)(1)(B) and obtained a lawful court order for the defendant’s cell phone records from his service provider. In essence, having a court order was analogous to having a warrant.
On appeal, the defendant argued that the Fourth Amendment gave him a privacy interest in his service provider’s records. The Second District flatly rejected this argument, indicating that the United States Supreme Court has taken “pains to reject the claim that persons have a reasonable expectation of privacy in the numbers that they dial from their phones.” The Second District pointed out that the public generally knows that service providers maintain numerical information on customers’ cell phone usage for a variety of legitimate business purposes. Accordingly, “it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
Ultimately, the Second District upheld how the prosecutor obtained the cell phone records and the defendant’s conviction. The Second District remanded the case for the sole purpose of having the trial court re-determine the court costs that the defendant was obligated to pay.
Now, while the Second District has spoken, the Neely case may not be over. The defendant in Neely could ask the Ohio Supreme Court to review the Second District’s opinion. It remains to be seen whether the Ohio Supreme Court will find the defendant’s privacy arguments to be matters of great enough public concern to justify accepting the case for review.
While Neely is a criminal case, it serves as a good reminder for all of us that we can never assume that any information known to others is “private.”
So, who are you going to call now?