NATIONALLY RECOGNIZED FEDERAL LAWYERS

21 Jan 24

Subpoenaed Phone Records? How to Challenge Government Overreach

| by

Last Updated on: 21st January 2024, 10:46 pm

Fighting Back When Your Phone Records Have Been Subpoenaed

Getting a notice that the government has subpoenaed your phone records can be scary and confusing. You likely have a lot of questions about your rights, what information they can access, and what you can do to challenge the subpoena. This guide breaks down the key things you need to know if your phone records have been subpoenaed, including your legal options for fighting back against government overreach.

Understanding Government Authority to Access Phone Records

Federal and state governments have some legal authority to access phone records for criminal investigations or matters of national security. However, there are limits and rules about when and how they can do this.Police typically need a search warrant to access the content of phone calls or text messages. But according to federal law, basic subscriber records held by phone companies – like who you called, when, and for how long – can be obtained through a subpoena alone. This is known as “metadata” and does not cover the actual content of communications.While government agencies don’t need a warrant for metadata, they still must meet legal standards like showing the records are relevant to an investigation. For example, they can’t just go on a “fishing expedition” through anyone’s records without cause.

What Types of Information Can Be Accessed

Depending on the scope, a subpoena for phone records may request:

  • Subscriber information: Your name, home address, phone number, email address and other account details.
  • Call logs: Numbers you dialed or received calls/texts from and the dates/times of contact.
  • Cell site location records: Information about which cell towers your phone pinged, used to approximate where your phone was during calls.
  • Length of service: Details on when you opened or closed an account.

Importantly, the content of communications (what was said during calls or written in texts) requires a warrant and cannot be accessed with just a subpoena.

Challenging the Subpoena in Court

If you receive notice your records were subpoenaed, you have the right to legally challenge the order in court. Grounds for challenging could include:

  • Overly broad request: Seeking an unreasonable amount of records irrelevant to an investigation.
  • No probable cause: No justification for claiming the records may contain evidence of a crime.
  • Procedural issues: Not properly serving you notice or allowing time to object.
  • Privacy rights violation: Accessing certain sensitive information protected under the First and Fourth Amendments.
  • Confidential records: Seeking privileged communications with doctors, lawyers etc.

You can file a motion to “quash” (block) or modify the subpoena if you have evidence it is invalid or excessive in some way. An attorney can help craft the strongest legal argument against the order.

Using the Freedom of Information Act

Another way to find out what information was handed over – and whether the subpoena was justified – is by using open records laws like the federal Freedom of Information Act (FOIA) . FOIA allows access to view government records unless they fall under certain exemptions.You or your lawyer can file a request under FOIA to get copies of the subpoena itself as well as justifications given to the court. This can help uncover if agents made false claims about needing the information when applying for the order.

Obtaining Legal Representation

Fighting back against a subpoena takes knowledge of various complex laws and court procedures. Most people benefit greatly from working with an attorney experienced in this area. An attorney can handle communication with government agents, file motions and represent you in related court proceedings.If finances are a concern, don’t assume legal help is out of reach. There are affordable options like finding lawyers willing to offer flat fees or payment plans. Those facing criminal charges can also request a public defender.

Securing Your Records After a Breach

In addition to challenging the subpoena itself, take steps to protect sensitive information in phone records from potential misuse:

  • Freeze credit reports with Equifax, TransUnion and Experian, which blocks new accounts being opened without permission.
  • Monitor accounts closely for any suspicious charges or activity indicating fraud.
  • Change passwords on financial, email, social media and other accounts potentially exposed. Enable two-factor authentication where possible.
  • Consider credit monitoring services that alert you of any new accounts or credit checks by third parties.
  • File an identity theft report with the FTC and police if you discover your personal information has already been misused.

Having your call records subpoenaed can be unsettling but understanding your rights and options is empowering. With an attorney’s help fighting excessive government reach, you can protect your civil liberties. Don’t hesitate to contact legal aid if agents overstep appropriate investigative boundaries.

Resources

When Can the Government Access Your Phone Records? – Reddit thread discussing legal standards for accessing phone recordsWhat Information is Covered Under Subpoena Authority? – Overview from LawInfo on types of phone data accessibleStrategies for Responding to Overbroad Subpoenas – Image with tips from FindLawWhen Can You Challenge a Subpoena? – Short video explainer from local law firm