A recent court holding by the 9th Circuit in an armed robbery case involving two defendants (United States v. McReary and United States v. Hunter) shed further confusion on the subject of whether or not there is a privacy right inherent in your cellphone records.
In the case, the government obtained a grand jury subpoena for the defendants' cell phone records at the time of the robbery. The cell provider, SkyTel, happily complied with the subpoena and turned over not all of the details of the defendants' cell phone communications, including the exact text of every text message they sent. The trial judge admitted these records over the objections of the two defendants, and last month the 9th Circuit announced their decision on the appeal.
Unfortunately, it's still not clear what these decisions really mean. For instance, in the McReary case, the judge simply states that because of the overwhelming amount of other evidence implicating the defendant, there's no reason to even seriously consider the privacy of text messages, as their admission alone had likely no effect on the outcome. Given all the other evidence presented at trial, even if the text messages weren't included, the judge reasons, McReary would have been handily convicted. In short, they didn't even consider this issue at appeal.
Hunter's objections didn't raise privacy concerns, so there's no further clarity given in his case, either. His objection was to the admission of a partial collection of the text messages, rather than the full set obtained by prosecutors. As far as I know, this is a pretty clearly-established principle of evidence that you can admit a summary of evidence if the total amount is (1) available to opposing counsel, and (2) the body of evidence would be overwhelming for the court or the jury. Which is what happened here, and this objection was handily smacked down by the 9th Circuit.
So where does that leave us? Well, honestly, no more clear than we were before these two cases hit. It seems as though the courts really are ducking the issue in many of these cases, finding their reasons not to consider the objection, or to knock it down quickly and without significant analysis. As long as that remains the status quo, we may never really understand what the limits of government power are in regard to our cellular and other electronic communications.
In the case, the government obtained a grand jury subpoena for the defendants' cell phone records at the time of the robbery. The cell provider, SkyTel, happily complied with the subpoena and turned over not all of the details of the defendants' cell phone communications, including the exact text of every text message they sent. The trial judge admitted these records over the objections of the two defendants, and last month the 9th Circuit announced their decision on the appeal.
Unfortunately, it's still not clear what these decisions really mean. For instance, in the McReary case, the judge simply states that because of the overwhelming amount of other evidence implicating the defendant, there's no reason to even seriously consider the privacy of text messages, as their admission alone had likely no effect on the outcome. Given all the other evidence presented at trial, even if the text messages weren't included, the judge reasons, McReary would have been handily convicted. In short, they didn't even consider this issue at appeal.
Hunter's objections didn't raise privacy concerns, so there's no further clarity given in his case, either. His objection was to the admission of a partial collection of the text messages, rather than the full set obtained by prosecutors. As far as I know, this is a pretty clearly-established principle of evidence that you can admit a summary of evidence if the total amount is (1) available to opposing counsel, and (2) the body of evidence would be overwhelming for the court or the jury. Which is what happened here, and this objection was handily smacked down by the 9th Circuit.
So where does that leave us? Well, honestly, no more clear than we were before these two cases hit. It seems as though the courts really are ducking the issue in many of these cases, finding their reasons not to consider the objection, or to knock it down quickly and without significant analysis. As long as that remains the status quo, we may never really understand what the limits of government power are in regard to our cellular and other electronic communications.
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