As the nature of our movements and communications become more electronic, the federal courts and courts in West Virginia are increasingly confronted with the complexities of balancing personal protections and privacy rights with governmental access to electronic data. While the right against unreasonable searches and seizures in the Fourth Amendment was once limited to physical searches of one’s home or car, it must now address government efforts to reach computers, cell phones, and the online “cloud.” One of the more perplexing questions that must be considered is whether these electronic spaces are indeed private, or whether conveying information by cell phone, or saving it online, is essentially a voluntary waiver of privacy. A recent case before the Fourth Circuit takes a look at the specific circumstances in which police use cell phone towers to retrieve information about defendants.
When we use our cell phones, whether for calling, texting, or GPS, they are in a constant state of communication with local cell towers, providing messages and feedback between the two. Cell phone companies typically maintain data regarding with which cell phone tower a particular cell phone interacts, and this data can be used to provide a rough sense of the location of a cell phone user at any time. While governments cannot actively monitor such data, they can request it directly from a cell phone provider. In United States v. Graham, this is precisely what the government did when investigating a series of armed robberies. Such evidence was subsequently used to help convict the defendants, and the defendants argued, on appeal, that the government obtained such data in violation of the Fourth Amendment because it did not have a search warrant.