Privacy and Tracking Cell Phone Use

Our cell phones have been described as the biographer of our daily lives.  If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases.  The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context.  Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier.  The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect's vehicle.  The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also "cloning": having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers.  In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue.  Privacy law is going to be a growing branch of our jurisprudence in the next few decades.

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Posted in: cell phone,cloning,criminal law,divorce,GPS,lawyer,privacy law,SCOTUS

Federal Government Calls for Total Ban on Distracted Driving

Unanimously, the 5 members of the National Transportation and Safety Board called for all states to impose a complete ban on texting, emails, and even cell phone use (hand held or hands free) while operating a vehicle.  The NTSB's little-noted but highly significant recommendation came out before the holidays last month in the wake of a series of deadly car crashes involving distracted drivers.

In one of the crashes, a Missouri teenager caused a death accident after texting 11 times in as many minutes.  There seems to be a correlation between youth and distracted driving which is compounded by the youth's relative inexperience on the road.

Now the question is whether the state legislatures have the political will to outlaw what has become ingrained behavior for most driving Americans.  Even if distracted driving is banned, there is also a question of enforcement.

With all the OEMs producing vehicles outfitted with navigation systems and sophisticated communication software built right into the car, state legislatures will soon have lunch dates with automotive industry lobbyists; for sure.  And then there is the cell phone industry; not likely to stand on the sidelines and watch this type of prohibitive legislation develop.

Here is the legislative breakdown so far, with new laws appearing on the books every year: 35 states and the District of Columbia have banned texting while driving; 30 states have banned all cell phone use by a beginning driver; 9 states have banned hand-held cell phone use while in a car.

The NTSB's firm position is simply that use of electronic communication devices is too dangerous to be allowed anywhere in the United States.  When the NTSB announced the recommended ban early last December, it chairwoman, Deborah Hersman, said, "We're not here to win a popularity contest.  No email, no text, no update, no call is worth a human life."

You got that right sister; you sure got that right.  We will be monitoring the state legislation on this topic and will report back to you with significant developments.

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Posted in: cell phone,Deborah Hersman,distracted driving,NTSB,texting

Cheating Spouse App Gets Pulled by Droid

A controversial new application for Motorola's popular Droid phone has apparently been pulled before it had a chance to hit the cell phone application market-place.

The idea behind the "Secret SMS Replicator" application is to forward text messages from the target phone to a designated phone.  What's more, the application on the target phone is invisible and cannot be detected.

Similar applications have failed Apple's application store approval process.  In the case of the SMS Replicator, Google said the covert application violates the "Android Market Content Policy."

Just because this application did not make it to market does not mean it won't be applied.  The technology is available to those who do not mind installing rogue applications.

In Michigan, it is illegal to download the emails of another person without permission by using spyware and keystroke programs.  These products, however, remain on the market.

Perhaps the best policy if you are in a marriage or a committed relationship is to stay faithful.  On the other hand, if you believe your spouse or significant other has strayed, or is thinking of doing so, it may be time to move on through separation or divorce.

Often, a cuckholded spouse feels the need to acquire rock-solid proof of infidelity. Sometimes, this is sound pre-divorce strategy. Getting the goods on your significant other, however, should never come via breaking the law.

Good luck out there!

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Posted in: adultery,Android,attorney,cell phone,divorce,Droid,infidelity,SMS Replicator,spouse

Texting While Driving Soon Illegal in Michigan

Distracted driving takes lives.  Many adults have experienced that sick feeling of guilt and relief when you realize you've crossed over the center-line because you were checking your cell phone.

For most of us, we swerve back to our lane, hoping for the best and, statistically, you're fine; you continue to your meeting or appointment.  Others, however, are not so lucky.  Many injuries and deaths result as the incidents of distracted driving sweep over our state's roadways.

The cause is the now-ubiquitous cell phone and our seemingly insatiable need to "stay-in-touch" with everyone and everything at all times.  The electronic criminal lawyer posted on this subject last spring, speculating that it would not be long before the law catches up with our irresponsible habits.

The Michigan Senate has already passed the main legislation and Governor Granholm has indicated she plans to sign the legislation immediately into law.

The proposed fines are $100 for a first offense and $200 for a second offense.  The House of Representatives are now working-out how violations will be recorded by the Secretary of State on a driver's master driving record.

Stay tuned and put your cell phones down when you are driving.

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Posted in: cell phone,distracted driving,Governor Granholm,master driving record,Michigan House of Representative,Michigan Senate,Secretary of State