The data on employees’ cell phones may be taken by law enforcement, even without a warrant, if those smart phones are used in public places.

The Federal Bureau of Investigation is taking the position that search warrants or other court orders are not required when deploying cell-site simulators, known as “stingrays,” in public places which imitate cell phone towers and capture the locations, identities, calls and texts of mobile phone users.  With the pervasive use of smart phones in business today and with those phones containing confidential personal and business information, this may present real concerns for employers.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt) and Senator Chuck Grassley (R-Ia) revealed the FBI’s position in a letter written to Attorney General Eric Holder and Homeland Security Chief Jeh Johnson last week.  This letter was written in part because the Wall Street Journal reported in November that the Justice Department and the United States Marshal’s Service were deploying small airplanes equipped with cell-site simulators, known as “dirtboxes,” that enable “investigators to scoop data from tens of thousands of cellphones in a single flight, collecting their identifying information and general location.”

The letter expresses concerns about the scope of the exceptions the FBI uses in deploying cell-site simulators without a warrant.  The letter provides that “the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one or several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety; (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy.”  Needing “a broader understanding of the full range of law enforcement agencies that use this technology,” the Judiciary Committee has asked AG Holder and Secretary Johnson for further explanation of this  policy by January 30, 2015.

Despite the FBI’s position, some states have already taken action to limit law enforcement’s use of stingrays.  The Florida and Massachusetts state supreme courts rulesd that warrants were necessary for real-time cell phone tracking.  Nine states – Colorado, Illinois, Indiana, Maryland, Minnesota, Tennessee, Utah, Virginia, and Wisconsin – have recently passed laws specifically requiring that police obtain  a warrant to track a cell phone in real time.

Nevertheless, law enforcement’s use of cell-site simulators without a warrant is allowed by the Federal Government and the majority of states.