Following any vehicular incident, insurance companies can subpoena your cell phone records to see if you were talking or texting on your phone while an incident occurred. That evidence can make it more difficult for your attorney to argue that an accident wasn’t your fault, or to argue what percentage of liability should be shifted to another driver or drivers.
On the other hand, you can also request your own cell phone records from your carrier following an incident, perhaps finding evidence to avoid personal liability.
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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. But it’s all more complicated than that, especially where texting might be concerned. Please read on to see why.
Obtaining Phone Records
Phone records can be obtained by subpoena or by the account holder’s request with a notarized letter. All phone activity data is available for the asking. Your wireless phone company can provide you with the date if you are still within the window of time in which they keep those records. Wireless phone records – known as Call Detail Records (CDRs) – are not protected by the Stored Communications Act. These records are unique in that they are not protected by the Fourth Amendment, as are most communications.
What are Call Detail Records?
Call detail records (CDRs) are cell phone records. They show the caller’s phone number, the length of the call, and the call’s start and end times. CDRs also identify the cell phone tower to which the phone was connected. Text message meta data can also be found in the CDRs, though the actual message contents cannot be seen.
A call detail record can also show all call attempts, whether or not those calls connected. The cell tower linked to a corresponding location is available only upon request for each separate call.
To obtain texting contents, the cell phone company must receive a request within days of an incident. However, cell phone companies don’t consider all messages to be text messages. iMessage, for one, uses end-to-end encryption and a data/WiFi connection to send and receive, rather than SMS. Apple to Apple devices use iMessage, which reverts back to SMS if iMessage is not available. These alternative systems result in cell phone companies not actually having information on some of these messages. They can indicate incoming and outgoing data (like loading a webpage or YouTube video) but not show an actual text message.
Apple doesn’t have easy access to the contents of these messages, either. Apple has an encrypted version without the ability to decrypt it. Only the recipient’s phone/device can decrypt (end-to-end encryption) the message in question. This is the reason why Apple does not or cannot comply with federal and local government subpoenas.
Though the NSA may have immediate access to any and all data, no matter how encrypted it may be, as Edward Snowden and others have claimed, attorneys in car accident lawsuits are unlikely to gain access to it.
Interpreting or Misinterpreting the Data
Call data can be misinterpreted or misused by some attorneys, so it’s important to understand how it works. Call detail records can contain several different types of records: voice, text messaging, data transmission activity. However, this data can be misleading. Data transmissions don’t always indicate an active user was engaged in communications at a given time. Some “expert” could opine that a given data transmission at such and such a time indicates a cell phone user was actively communicating in that time. However, data transmissions don’t always indicate a user was actively texting or talking. Data transmissions occur intermittently and at all times, whether or not the phone is being used by the person at that time. Therefore, it can be impossible to determine what kind of data is being transferred at a given time.
Voice Calls – Hand-held or otherwise
Voice calls can indicate the phone was being used at a given time by the driver. However, it is impossible to determine whether or not the phone was being used hands free in a voice call. The CDR can sometimes determine whether a call went to voicemail, though some phone bills don’t indicate this potentially-crucial detail.
Texting Misinterpretations
Another misinterpretation in distracted driving cases is the argument that incoming text messages indicate user activity at a given time. A phone record does not show whether, or when, an incoming text message was being read by the person with the phone. Outgoing text messages can be an indication the phone was being used when the message is sent; however, this is not absolute proof of anything, because some applications can send message replies automatically when a person’s cell phone is moving in a vehicle.
Cell Phone Records, Phone Locations used in Court
Location information stored in CDRs can determine whether a phone was near a particular location. In insurance cases, for example, it may be vital to know whether someone were 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 relevant incident. A hit-and-run auto crash, for example, or a fire or explosion, can turn on whether or not the driver was in the vicinity at the time. In any situation, call detail records can contain critical evidence concerning whether or not the plaintiff’s case can move forward to successful resolution, or perhaps be dismissed.
The Dangers of Texting and Driving
Texting and driving is a dangerous behavior that poses significant risks to both the driver and others on the road. The dangers of texting and driving include:
- Distraction: Texting while driving is a visual, manual, and cognitive distraction. It diverts the driver’s attention away from the road, potentially leading to delayed reaction times and an inability to detect and respond to hazards.
- Increased Accident Risk: Tapping out a text message while driving significantly increases the likelihood of being involved in a car accident. Studies have shown that texting drivers are approximately six (6) times more likely to cause an accident compared with those who are focused on the road.
- Impaired judgment: Texting and driving can impair a driver’s ability to make sound judgments and decisions on the road. This includes misjudging distances, failing to recognize traffic signals, and making poor choices in critical situations.
- Reduced awareness: When texting, drivers often develop tunnel vision, focusing solely on their phone screens rather than the road ahead. This can result in a failure to notice pedestrians, other vehicles, and important traffic signs or signals.
- Decreased reaction time: Texting requires manual input and cognitive processing, both of which can slow a driver’s reaction time. This delay can be crucial in emergency situations, making it difficult to avoid collisions or respond appropriately to sudden changes in traffic conditions.
- Increased likelihood of other risky behaviors: Texting while driving may lead to other dangerous behaviors, such as veering out of the lane, drifting into oncoming traffic, or failing to maintain a consistent speed. These actions further escalate the risk of accidents.
- Legal and financial consequences: Many jurisdictions have implemented laws and regulations prohibiting texting and driving. Drivers who are caught may face fines, license suspension, increased insurance premiums, even criminal charges.
To promote safer driving habits, it is essential to recognize the dangers of texting and driving, and make a commitment to avoid using mobile devices while behind the wheel.
Drivers should, instead, prioritize their attention on the road, use hands-free communication methods if it’s absolutely necessary to use the phone while driving, and pull over to a safe location if they must send or read messages.
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by Matthews & Associates
