As cell phones have become ubiquitous in our culture, the law has often struggled to catch up to these and other technological innovations. In particular, it has been unclear what steps law enforcement agencies need to take to gain access to cell phone records and information about customers held by cell phone companies. A recent ruling by the Massachusetts Supreme Judicial Court (SJC) states that local and state police will often need to acquire a warrant before attempting to track the cell phones of Massachusetts residents.
Whenever a cell phone user makes or receives a phone call, their location data is automatically generated and stored by the cell phone company. This data is known as cell site location information (CSLI), and can be used to track and reconstruct a person’s movements and location over time. Cell phone service providers often turn these records over to law enforcement without asking for a warrant, usually after receiving an administrative subpoena. Major cell phone companies turn over thousands of CSLI records every year.
Last month, in Commonwealth v. Augustine, the SJC found that the Commonwealth’s attempt to obtain two weeks’ worth of CSLI about the defendant without first getting a warrant violated the state constitution’s Article 14 warrant requirement. The SJC reasoned that "the tracking of [Augustine's] movements in the urban Boston area for two weeks was more than sufficient to intrude upon [his] expectation of privacy safeguarded" by the state’s Declaration of Rights. The fact that the CSLI technically belongs to the third-party cell phone companies does not negate the need for a warrant.
The holding in Augustine effectively means that, going forward, police will be required to acquire warrants for many situations in which they want to look at a suspect’s CSLI. The decision does allow for some warrantless searches of CSLI, but significantly narrows the scope of these searches. The defendant in Augustine was represented by the American Civil Liberties Union (ACLU) of Massachusetts. ACLU of Massachusetts legal director Matthew R. Segal had the following to say about his organization’s victory:
"Today's ruling is an enormous victory for privacy in the Commonwealth, and it means that Massachusetts is taking an important lead in dealing with the privacy implications of the digital age. Under this ruling, turning on a cell phone does not justify warrantless local and state surveillance of when, where and how you use it. The ACLU took this case because people carry their phones everywhere and use them constantly, so the government can learn much about who we are by finding out where we are while our phones are in use. We argued that this sensitive information deserves the protections of the state's warrant requirement, and the Court agreed."
This ruling entrenches the privacy rights of Massachusetts cell phone users. If you have been arrested after being the victim of an illegal, warrantless search, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.
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Search and Seizure in the Digital Era: Warrantless Searches for Electronic Communication