{"id":4128,"date":"2010-06-06T13:43:12","date_gmt":"2010-05-03T08:28:45","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-03T08:28:45","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4128","title":{"rendered":"CT: Giving out one’s cell phone number is not a waiver of privacy in the number or the phone"},"content":{"rendered":"

Defendant had a reasonable expectation of privacy in the contents of his cell phone and his number, contrary to the state\u2019s argument. Just giving out the number to others is not a waiver of the expectation of privacy. State v. Boyd<\/a>, 295 Conn. 707, 992 A.2d 1071 (2010):<\/p>\n

The state also claims, however, that even if the defendant owned and controlled the cell phone, he failed to establish that he had a reasonable expectation of privacy in the cell phone number because he presented no evidence that he had made any attempt to keep it private. In support of this claim, the state relies on United States v. Fierros-Alavarez<\/a>, 547 F. Sup. 2d 1206 (D. Kan. 2008). In that case, the court concluded that, because the defendant had lawful possession and control of his cell phone when it was seized and searched by the police, he had a subjective expectation of privacy in it. Id., 1210. The court also concluded, however, that the defendant had no reasonable expectation of privacy in the cell phone’s recent call directory showing the numbers that the defendant had called from the cell phone because he had provided that information to third parties. Id., 1210-11. In support of this conclusion, the court relied on Smith v. Maryland, 442 U.S. 735, 742-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (no reasonable expectation of privacy in dialed telephone number because telephone company must receive telephone number to complete call and person has no legitimate expectation of privacy in information he voluntarily turns over to third parties), and United States v. Forrester, 512 F.3d 500, 509-10 (9th Cir. 2008) (applying Smith to validate police surveillance of defendant’s computer to obtain e-mail addresses of outgoing e-mails and addresses of web sites visited).<\/p>\n

We do not find the court’s reasoning in Fierros-Alavarez to be persuasive. In Smith and Forrester, the government had not obtained the dialed telephone numbers and e-mail addresses from an item or area in which the defendant had a reasonable expectation of privacy, but had obtained the information from, respectively, the telephone company and the Internet provider. See Smith v. Maryland, supra, 442 U.S. 741 (government installed pen register to record numbers dialed from defendant’s telephone on telephone company property at telephone company’s central offices); United States v. Forrester, supra, 512 F.3d 505 (government installed “pen register analogue” at Internet provider’s facility). 10 Thus, we understand the cases to stand for the proposition that the government can obtain information that the defendant has provided to a third party from that third party without implicating the defendant’s fourth amendment rights. For example, in the present case, if the police had obtained the defendant’s cell phone number from Gagliardi or from the cell phone carrier, there would have been no fourth amendment violation under Smith and Forrester because the defendant could have no reasonable expectation that Gagliardi and the carrier would not reveal the information. Contrary to the court’s assumption in Fierros-Alavarez, however, nothing in either case supports a conclusion that, if a defendant has a reasonable expectation of privacy in an area or item, the government may search that area or item for any information that the defendant had provided to third parties without triggering fourth amendment protections. We conclude, therefore, that the fact that the defendant in the present case had provided his cell phone number to third parties and had not taken steps to ensure that it was confidential does not mean that he had no reasonable expectation that the police would not search the contents of his cell phone for the number without a warrant. We conclude, therefore, that the defendant had a reasonable expectation of privacy in all of the contents of his cell phone, including his subscriber number.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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