Cell Phone Subscriber Information Is Not Protected by Fourth Amendment

The case is Upshur v. State, No. 1461, Court of Special Appeals of Maryland (November 28, 2012).

The defendant challenged the use of his name and address, which law enforcement officers obtained without a warrant from his cellular telephone service provider.  This information led to his identification by law enforcement and the issuance of a search warrant for his house and automobile. The evidence obtained led to the defendant’s conviction of second degree assault, reckless endangerment, and carrying a concealed dangerous weapon. He was sentenced to ten years in prison for the assault conviction and three years in prison imprisonment, which was suspended, for the weapons charge.

The defendant argued, in part, that the Fourth Amendment of the United States Constitution and the Stored Communications Act, considered in combination, mandate exclusion.

The problem for the defendant is the doctrine that once an individual conveys information to a third party, society does not generally recognize an expectation of privacy in that information. Without an expectation of privacy, the Fourth Amendment is not applicable.  The leading case, relied on by the court, for this idea is Smith v. Maryland, 442 U.S. 735, 741-42 (1979).  In Smith, the United States Supreme Court determined that a telephone user did not have a reasonable expectation of privacy in the numbers that he or she dialed because the information was knowingly conveyed to the phone company.

The court rejected this argument because the defendant did not “produce evidence establishing that he had any constitutionally protected expectation of privacy in his subscriber name and address.”  The court noted:

Federal courts that have considered the issue of an expectation of privacy in subscriber identifying information have all determined that there is no such protected expectation: “Every federal court to address this issue has held that subscriber information provided to an [electronic communication service] is not protected by the Fourth Amendment’s privacy expectation.” United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008) (collecting cases). For example, in United States v. Bynum, 604 F.3d 161 (4th Cir. 2010), the United States Court of Appeals for the Fourth Circuit determined that a person does not have a reasonable expectation of privacy in subscriber data conveyed to the provider: “[Defendant] voluntarily conveyed all this information [name, address, e-mail address, and telephone number] to his internet and phone companies. In so doing, [Defendant] `assumed the risk that th[os]e compan[ies] would reveal [that information] to police.’” Id. at 164 (quoting Smith, supra, 442 U.S. at 744).

Accordingly, the court held that the Fourth Amendment does not protect a cell phone subscriber’s name and personal information.

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