When does one start to have a legitimate privacy interest in one’s phone records?

In McGreal v. AT & T Corp., 2012 WL 4356683 (N.D. Ill. Sept. 24, 2012), a federal district court held that a phone owner did not have standing to bring a Fourth Amendment unreasonable search and seizure violation as she did not have a legitimate expectation of privacy in the previous owner’s usage records of the phone.

The plaintiff alleged a Fourth Amendment unreasonable search and seizure violation against the Village of Orland Park and some of its employees (The Village defendants). In October 2010, the Village of Orlando Park requested a subpoena for the phone records at issue during the arbitration of the plaintiff’s son’s termination as an Orland Park police officer. The subpoena was issued for the months of February and March of 2010. The phone number for which the subpoena was issued belonged to the plaintiff’s son from May 2009 through March 26, 2010. When the plaintiff’s son was ordered to produce his phone records for February and March 2010, he was unable to provide them because he closed the phone account on March 26, 2010 and transferred it to the plaintiff.

At trial, the plaintiff argued that her status as owner of the cell phone number when the subpoena was issued gave her ownership of the entire record associated with the number.

The District Court dismissed the defendant’s argument and noted that the subpoena mostly sought after “records that were created . . .  before her ownership of the number.” The court stated that for one to have a legitimate privacy interest as to confer standing to object to a search and seizure, one must have some amount of possession and control over the “object” of the search. The court frowned against the transfer of ownership by the plaintiff’s son to the plaintiff and deemed it a bad faith attempt to evade production of the records.

It is not exactly clear how much weight the court gave to the factual circumstances that surrounded the termination and transfer of the phone account. In the absence of bad faith, one may wonder if the holding would be the same.

While the court held that the plaintiff did not have standing to bring a search and seizure violation in regards to the entire phone record, the court held that the plaintiff did have standing pertaining to the phone records of March 26, 2010 through March 31, 2010. This was a period where she had ownership and complete dominion of the phone record. Thus, the Village defendants’ motion to dismiss the Fourth Amendment violation claim for lack of standing was granted in part and denied in part.