Let’s say we are representing a party in a lawsuit regarding a commercial vehicle crash. We have identified the phone number of the opposing driver, and we would like to get the phone records to see if there was any activity on the phone around the time of the crash.
We could send a request for production and have the cell phone user provide the records, or have the user provide consent for us to get the records from the phone company. In these cases, we would receive the billing records from the phone company. The billing records provide the call times with accuracy to the minute, and the durations of the calls to the minute as well. This gives us a two-minute window for the potential end of the call which doesn’t help us much in a crash case. Additionally, the billing records do not provide cell site location information. Because of these issues, we want to obtain the Call Detail Records (CDR) rather than the billing records. The CDR will have the call start time to the second, duration to the second, and include cell site location data. However, to get the CDR we will need to send the phone company a subpoena.
Sending a cell phone subpoena can be intimidating. Even seasoned attorneys can become uncomfortable with the technical language required for a cell phone record subpoena. In this blog post we will demystify some of the issues with sending cell phone record subpoenas
As a police detective working on a criminal case, I could write the search warrant for cell phone records, take it to a judge to be signed, and send the signed warrant to the phone company. As an analyst in a civil case, I can’t do that. In a civil case, the attorney working on the case must send the subpoena to the phone company. This must be done under the supervision of the court. Most of the time the subpoena must be associated with an open court case. Some jurisdictions allow for pre-complaint discovery and the subpoena can be sent before the case is filed in court.
If we know the phone number for a target phone, how do we know where to send the subpoena? There are tools available to law enforcement to correctly identify the phone company for a phone number. Unfortunately, these tools are not available for civil cases, and we are limited to open-source searches. One of the best tools is the Local Calling Guide found at https://localcallingguide.com/lca_prefix.php.
This tool will show us the original phone company the phone number was assigned to. This is a good place to start but doesn’t guarantee the phone number is still with the original phone company. Customers can change phone companies and take their phone numbers with them.
Another valuable tool is the reverse phone lookup on Whitepages found at https://www.whitepages.com/.
Whitepages won’t show the subscriber information without a paid account, but it will usually show the phone company. The phone company shown may be the current phone company or the original phone company. If the phone number has been ported many times, the phone company on Whitepages may be any of the phone companies along the line. Whitepages isn’t perfect, but it is a valuable tool.
These tools are a good start in identifying the current phone company. A good practice is to send a preservation letter to the phone company identified in the open-source search and then follow up with a phone call within a few days. The phone companies will usually tell us if the phone number isn’t on their network.
Another valuable technique is to include the phone company in interrogatory questions. It is important to ask what the phone company was at the time of the incident, not necessarily at the time of the interrogatory.
Before we take the steps of submitting a subpoena for cell phone records, we should know if the records are likely available. Many times, in civil cases we don’t know we need the phone records for months or years after the incident occurred. Policies on records retention can vary by phone company. United States Criminal Code 18 USC § 2703 requires phone companies keep the records for at least 180 days, but most companies keep them longer. Here are how long each of the major phone companies keep their records with cell site information:
- AT&T – Back to July 2008
- Sprint – 18 Months, but I’ve had success up to Two Years
- T-Mobile/Metro PCS – Two Years
- Verizon – One Year
For example, let’s say we are engaged in a new motor vehicle crash case on November 1st, 2023, and the crash occurred on June 12th, 2022. If the phone for which we would like to obtain the records was a Verizon phone at the time of the crash, the records would not be available. If the target phone was with AT&T, Sprint, or T-Mobile/Metro PCS, the records would most likely be available.
If we’re looking for the call logs only, the records would likely be available for much longer as billing records. But the call logs will not contain valuable information such as the time of the call, the duration of the call to the second, or cell site locations.
What information is available?
If you’ve seen my preservation letters, you’ll notice there’s a lot of information available from the phone company. Not all this information is retained for the 180 days required by 18 USC § 2703. All the phone companies will retain the call, text, and data logs along with cell site information for the timeframes mentioned above. Some of the information doesn’t fall under the requirements of 18 USC § 2703 and is deleted earlier. For example, Verizon maintains the content of text messages (what the text messages said) for about seven days. Verizon also maintains the estimated precise location of the phone, RTT (Round Trip Time or Range To Tower), for about seven days. That means Verizon can recover the content of text messages or RTT for the seven days prior to receiving the subpoena or preservation letter. As a police detective working on criminal cases I usually knew of the need for cell phone records within seven days of the crime. I could usually write the search warrant, take it to a court for a judge’s signature, and send it to the phone company within 24 hours. That timeline is unrealistic in civil cases. Only rarely will we know we need cell phone records in a case within seven days of the incident. In most cases, we don’t need to include the content of text messages or RTT in subpoenas to Verizon. (If we do want the content of the text messages the best way to obtain them is through a forensic examination of the phone itself.)
No other phone company maintains the content of text messages for any length of time, but other companies do maintain some type of precise location data. AT&T maintains NELOS (Network Element Location Service) for about 30 days, and Sprint maintains PCMD (Per Call Measurement Data) for two weeks.
In most cases the most valuable information is the call, text, and data logs along with the cell site locations. This information will be available for each phone company in the timeframes listed above. AT&T is the only company that maintains cell site locations for voice calls, text, and data. Sprint maintains cell site information for voice calls and data, T-Mobie/Metro PCS maintains cell site information for voice calls and text, and Version maintains cell site information for voice calls only.
While extremely valuable in a criminal case, especially when we have a phone number but don’t know the associated person, subscriber, credit, billing, and account information is usually not that important in a civil case. We usually know the user of the phone number. We may have learned of the phone number from the police crash report or through interrogatories. The association between the person and the phone number is usually established and not questioned. Therefore, we don’t need to include the subscriber, credit, and account information in the subpoena.
If, however, the user of the phone number is in question, the subscriber information may help establish the link between the phone number and the person. Also, if we believe the person may have had other undisclosed phone numbers, the account information, including other numbers on the account, may be valuable.
A quick note on interrogatories. Make sure to ask for ALL phone numbers the person uses.
An MVNO (Mobile Virtual Network Operator) is a phone company that provides cell phone service to customers but doesn’t maintain its own network. These companies, such as TracFone, Simple Mobile, Straight Talk, etc., contract with the major companies like AT&T and Verizon, to buy wholesale minutes and resell them under their brands.
Our open-source searches of phone numbers will show the network carrier, like AT&T or Verizon, and not the MVNO. At first, this won’t matter much to us. We need to address our subpoenas to the network carrier. The network carrier will have the call, text, and data logs with cell site information, but likely won’t have the subscriber information. We need to send a subpoena to the MVNO if we need the subscriber information. The network carrier will identify the MVNO in the return. The MVNO may maintain a call log, but it won’t have cell site information.
If a person identifies an MVNO as the carrier in an interrogatory, we may need to conduct an open source search to find the network carrier. Some MVNOs only use one network carrier. For example, Cricket Wireless operates on the AT&T network only, and Boost Mobile and Virgin Mobile USA operate on the Sprint network only. MVNOs like Straight Talk and TracFone contract with one network carrier for a particular phone number but use many network carriers as a whole.
I can’t cover all the issues in a single blog, but I’ve covered some of the more common issues faced by my clients. Every case is unique, and I’m sure someone reading this blog will encounter issued I haven’t covered. Don’t hesitate to contact me so I can help you through the process. For starters, fill out the contact form on braveinvestigations.com requesting cell phone subpoena examples and I will send them to you.