Cell Phone Records as Evidence in Legal Cases

The records kept by wireless phone companies about the use of cell phones are immense and very detailed. Wireless companies keep records about when and where a phone call is made, when text messages are sent and received, and when data is transferred.

Obtaining Phone Records: Subpoena or Account Holder Request

All this phone activity data is available if you ask the wireless phone company to provide it to you, and you are still within the window of time that they keep their records. Unlike many other records, wireless phone records or call detail records (CDR), are not protected by the Stored Communications Act and are not protected by the Fourth Amendment. They can be obtained via subpoena or by request of the account holder via a notarized letter.

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What do Cell Phone Records Show?

Cell phone records, otherwise known as “Call Detail Records,” show the caller’s phone number, the duration of call, the start and end time of the call, and the cell phone tower the phone was connected to.

Additionally, a call detail record will provide all call attempts whether they connected or not. The cell tower, and therefore location, is only available upon request for each connected phone call.

Text message meta data is also attainable, but the actual contents of the messages are not in the CDRs. To get the contents of the messages, a request must be made to the cell phone company within days of the incident.

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However, not all messages are what cell phone companies consider text messages. iMessage, for example, uses end-to-end encryption and a data/WiFi connection to send and receive instead of SMS. iMessage is the default when communicating between two Apple devices. If iMessage isn’t available, it will fall back to SMS.

Cell phone companies don’t actually have information on these messages sent through alternative systems. At the end of the day, it is incoming and outgoing data (like loading a webpage or YouTube video) and not actually a text message.

Continuing with our example, does Apple have access to the contents of iMessages? Not really. They have an encrypted version without the ability to decrypt it. Only the recipient’s phone/device can decrypt it (end-to-end encryption). That is why Apple doesn’t/can’t comply in federal and local government subpoenas.

Phone Bills vs Call Detail Records

In the many investigations we perform, the cell phone device is missing for myriad reasons, leaving any evidence of phone usage to be gleaned from the call detail records. How are these different than the phone bill?

A phone bill is only accurate to the minute since the majority of wireless phone companies bill to the next full minute. This means that a phone call that lasts 15 seconds would show 1 minute on a phone bill. A call that lasts one minute and one second will show as two minutes on a phone bill. Also, a phone bill is only going to give you evidence of billable activity. Billable activity does not include outgoing calls that did not connect to another phone, and may not include outgoing calls that connect to another phone’s voicemail.

Interpreting the Data

The call detail records can contain multiple types of records, including voice, text messaging and data transmission activity. The biggest mistake we see in the interpretation of this activity is that data transmissions are the result of user activity. Our firm worked a trucking accident case where the opposing expert was a 20-year veteran homicide detective who advised counsel that data transmissions indicated the truck driver was using his phone at the time of the accident. However, once we explained that data transmissions occur all the time, whether the phone is being used by the person or not, and that it is impossible to determine what kind of data is being transferred, the opposing party dropped the case.

Voice calls are an indication of phone usage by the driver, however, whether or not the phone is being used hands free is impossible to determine from a record. Also, if the incoming call is answered by voicemail can be determined from the call detail record, where on some phone bills, this would not be indicated.

Another misinterpretation that comes up in many of the distracted driving cases we do is that incoming text messages are an indication of user activity. It is impossible to tell from a phone record that incoming text messages are being read by the person with the phone. Outgoing text messages can be an indication that the phone is being used at the time the message is sent, but this is not an absolute as some applications can send message replies automatically if a person’s phone is moving in a car or truck.

Cell Phone Records Used in Court

Location information stored in call detail records can be used to determine if a phone is near a particular place. For instance, in insurance cases, it may be important to know if someone is near a location when a fire started. Call detail records can allow an expert to determine if the phone was in the general area near the time of the fire, or other incident.

We have used this information in cases involving fires, explosions and hit-and-run auto accidents. In one case we handled, the insured driver in a hit-and-run case claimed to be in Atlanta, Georgia, at the time of the accident that occurred in Birmingham, Alabama. The driver’s call detail records clearly showed the phone near the location of the hit-and-run at the time of the accident.

To get a complete picture of what happened in many cases, getting the call detail records from the wireless phone company is critical.