Responding to Federal Subpoenas for Mobile Phone Records

Responding to Federal Subpoenas for Mobile Phone Records

Getting a subpoena for your mobile phone records can be an unnerving experience. Your phone contains a trove of personal information – who you talk to, where you go, what apps you use. No one likes the idea of handing that data over to the federal government. However, when you get a subpoena, you don’t have much choice. Here’s what you need to know about responding to federal subpoenas for mobile phone records.

What is a subpoena?

A subpoena is a legal demand for information. It requires you to turn over documents, give testimony, or both. Subpoenas are used in both criminal and civil cases. They are issued by a federal court, at the request of the government or a private party. Failure to comply can result in civil or criminal contempt sanctions.

There are two main types of subpoenas:

• A subpoena ad testificandum demands your testimony as a witness.
• A subpoena duces tecum demands that you produce documents or records.

A subpoena for mobile phone records will usually be a subpoena duces tecum. It will require you to turn over call logs, text messages, location data, and other records from your phone.

Can the government subpoena my phone records?

Yes. The Stored Communications Act allows the government to subpoena certain types of phone records. Call logs showing who you called or texted and when are not considered “content.” So they can be obtained with a subpoena, without a search warrant. Location data may also be obtainable with a subpoena, depending on how precise it is.

However, the government does need a warrant to access the actual contents of your communications – like what you said in a call or text message. A subpoena alone is not enough to get messages, emails, photos, or other content.

What should I do if I get a subpoena?

Don’t ignore a subpoena! You must take action within the time period specified, usually 14-30 days. Here are the key steps:

1. Notify your cell phone provider. They will pull the requested records from their databases.
2. Review the records. Make sure no privileged or confidential information is included.
3. Consider negotiating the scope. See if you can limit the date range or exclude certain records.
4. File any motions to quash or modify the subpoena, if you have valid grounds.
5. Produce the records by the deadline, if your motions fail.

You may need to hire a lawyer to help respond. An attorney can review the subpoena, negotiate with the government, and file motions on your behalf.

On what grounds can I challenge the subpoena?

You can file a motion to quash or modify the subpoena if it is improper or overbroad. Common arguments include:

• The subpoena seeks records that are irrelevant to the investigation.
• It fails to describe the records sought with sufficient particularity.
• Compliance would be unduly burdensome.
• It requests privileged communications with your lawyer.
• It violates your constitutional rights in some way.

The court will review your motion and decide whether to quash or modify the subpoena. But don’t expect too much – federal courts tend to enforce subpoenas if the request seems reasonably relevant to an investigation.

What kind of phone records do investigators want?

The records requested usually include:

• Call logs – Details like phone numbers, date/time, and duration of calls.
• Text logs – Date/time and phone numbers for who you texted.
• Cell site location data – Which cell towers your phone connected to, used to map locations.
• IP addresses – Internet Protocol addresses that identify your device.
• Email headers – Routing data showing who emailed whom.

Investigators use these records to establish connections between people and places. For example, if your phone pinged a cell tower near the scene of a crime, it could place you there.

What kind of data is protected?

The government cannot access the content of your communications without a warrant. For phone records, this means:

• Actual phone call audio is protected.
• Text/email messages and photos have content protections.
• Cell site data showing your location at a single point in time requires a warrant.

So the most detailed types of data require a warrant based on probable cause. Less precise “metadata” can be obtained with a subpoena.

How far back can records be subpoenaed?

There is no set time limit. The government can subpoena past records going back as far as they exist. Most phone companies keep records for 1-2 years. Older records may be obtainable from your phone’s internal storage.

You can try to negotiate the date range when served with a subpoena. A broad request going back years can be challenged as overbroad. But limited date ranges of a few months or a year are generally enforced.

Can I refuse to turn over my phone?

If the subpoena demands only your phone records, you do not have to turn over your physical phone. Just provide the records obtained from your cell provider.

However, if investigators get a warrant, you may be ordered to hand over your actual phone. Encrypted phones can present a challenge for law enforcement. Apple and other tech companies use encryption to protect data on phones. They don’t keep copies of customers’ passcodes. So even Apple can’t unlock a phone if the owner refuses to provide the passcode.

This led to a famous legal battle between Apple and the FBI in 2016. The FBI tried to force Apple to create a “backdoor” to unlock an iPhone used by a mass shooter. Apple refused, arguing this would compromise all users’ privacy and security. The dispute sparked a heated debate about encryption and public safety.

Can I be forced to unlock my phone?

The law is unsettled here. Police may try to compel you to unlock your phone by:

• Obtaining a court order requiring you to enter your passcode
• Using your fingerprint to unlock a phone by force

However, you may have Fifth Amendment protections against self-incrimination. This means you may be able to refuse to disclose your passcode if it could expose evidence against you. But the law varies by jurisdiction. Consult an attorney if you face this issue.

What if I forgot my passcode?

If you legitimately forgot your passcode, you may have to let your phone be factory reset. This wipes all data. Police cannot force you to remember a forgotten passcode. But they can doubt your claim that you forgot it.

An alternative is using a “brute force” method to guess all possible passcode combinations. But this is difficult with modern encryption. For example, iPhones allow 10 failed passcode attempts before wiping data.

What happens if I refuse to decrypt my phone?

You could face consequences like:

• Contempt of court charges for defying a court order
• Obstruction of justice charges for impeding an investigation
• Adverse inferences drawn against you in a civil case

However, contempt sanctions are usually designed to be coercive, not punitive. Fines or jail time may be imposed until you comply. Outright criminal charges are less common in these cases.

What should I do to protect my phone?

To guard your data against searches:

• Use full-disk encryption and a strong passcode
• Enable auto-erase after 10 failed passcode attempts
• Regularly back up data to external storage in case your phone is wiped
• Avoid fingerprint unlock, which can be compelled by force

Encryption provides strong legal protections for your phone’s contents. But it’s still risky to actively obstruct an investigation. This is a complex issue, so get legal help responding to a warrant or order for your phone.