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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.
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 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.
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.
Don’t ignore a subpoena! You must take action within the time period specified, usually 14-30 days. Here are the key steps:
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Google rating score: 4.9 of 5, based on 736 reviewsYou 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.
You can file a motion to quash or modify the subpoena if it is improper or overbroad. Common arguments include:
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.
The records requested usually include:
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.
The government cannot access the content of your communications without a warrant. For phone records, this means:
So the most detailed types of data require a warrant based on probable cause. Less precise “metadata” can be obtained with a subpoena.
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.
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.
The law is unsettled here. Police may try to compel you to unlock your phone by:
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.
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.
You could face consequences like:
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.
To guard your data against searches:
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.
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