Privacy SOS

Do police need a warrant to track your phone in Massachusetts? We will likely soon find out

UPDATE: Yes. Cops need a warrant. (Read the decision here.)

Should the police be required to get a warrant in order to monitor our location via our cell phones?

Massachusetts’ highest court is likely to answer this critical question when it rules on Commonwealth vs. Shabazz Augustine. The ACLU is on the case, representing Augustine in an appeal pertaining to his motion to suppress evidence obtained without a warrant. Our attorneys argue that, under the Fourth Amendment to the US Constitution and article Fourteen of the Massachusetts Declaration of Rights, police in Massachusetts must get a warrant before they can track our mobile phones. If the Supreme Judicial Court agrees, we will all benefit from significantly enhanced privacy protections in Massachusetts law.

The government says we have no privacy interest in our location data

The law in Massachusetts, like in most places nationwide, is woefully out of date. A good ruling in Augustine could go a long way towards fixing that problem for the people of the Commonwealth.

The facts in this case are relatively simple. Back in 2004, police wanted to know where Shabazz Augustine was when a crime took place. To find out, they sent what is called a 2703(d) order to his cell phone company to obtain two weeks worth of ‘cell site location information’ showing the location of his phone. Unlike a warrant, which requires investigators to show probable cause that the specific places to be searched will turn up evidence of a crime, 2703(d) orders require only that law enforcement show a judge that the search is relevant and material to an ongoing investigation. The order also came with a gag provision that barred the company from disclosing to Augustine that law enforcement officials were interested in learning about his travel history.

The gag provision meant that Augustine’s trial attorney didn’t learn about this until years after the phone company had complied, meaning the damage was done. Since he couldn’t go back in time to prevent the information from being disclosed, his attorney moved to suppress any evidence obtained without a warrant. That’s a fancy legal way of saying “You got this evidence illegally, so you can’t use it against my client.”

Here’s where the law gets a little bit complicated.

The defense attorney for Augustine argued that the kind of court order police obtained and used to acquire his client’s private information was illegal under both the US Constitution and the Massachusetts Declaration of Rights, our state constitution. His lawyer argued that physically tracking someone using this kind of technology is a search, and that because we have a privacy interest in our location details, the search requires a probable cause warrant. 

The government, meanwhile, argued that Massachusetts residents don’t have any privacy interest in the information our cell phones communicate about our physical locations. That should sound alarming, and it is. But it isn’t a minority view among law enforcement. Indeed, the top law enforcement officials in the land – the Department of Justice – have argued the same exact thing.

Augustine’s trial attorney convinced a judge that the cell site location evidence was obtained illegally, and the judge suppressed the evidence gleaned from the cell phone provider. But the Commonwealth appealed that ruling. That’s how we got to where we are today: a hearing before the Supreme Judicial Court. Now, the Commonwealth’s highest court will decide whether or not the lower court made the right decision when it suppressed the cell site location evidence. Crucially for everyone in the Commonwealth with a phone, the justices also have the opportunity to rule that cell phone location tracking requires a warrant.

Another secretive, rubber-stamp surveillance regime

The ACLU strongly believes that the lower court made the right call when it suppressed the cell site evidence. Here’s why.

When the police were investigating the crime back in 2004, they used a 2703(d) order from a judge to demand that Sprint – Augustine’s cell phone provider – give the police two-weeks of his location data. Even though these orders require judicial oversight, they are not warrants.

Warrants are the gold standard of American justice. As explained above, they require a showing of probable cause that the search will reveal evidence of crime, whereas 2703(d) orders simply require a showing that the search is relevant and material to an ongoing investigation.

That might seem like a distinction without a difference, but it is not. Probable cause warrants protect our privacy in a way that 2703(d) orders cannot, because the former force investigators to limit their snooping to suspects who are likely to have been involved in criminal activity – and bar them from snooping into the lives of people who may simply be tangentially related to an investigation into that criminal activity.

Thanks to Senator Ed Markey’s efforts to uncover details about cell phone tracking, we know that the real world consequences of this distinction are enormous. Back in 2011, then-Congressman Markey asked the major cell phone providers for statistics showing how many times law enforcement requested access to our private information. He found that in just one year, police and federal agencies made over 1.3 million requests to these companies for our data. Over a five-year period, Sprint alone received nearly 200,000 orders for customer information.

Many of the people who were targeted with those orders probably never found out about them, and many of them were probably innocent of any crime. Part of the problem with the 2703(d) court order, as opposed to a probable cause warrant, is that the regime governing this surveillance apparatus is shrouded in secrecy. That’s by design – and it is corrosive to our democracy.

In a rare public commentary addressing this issue, US Magistrate Judge Stephen Smith published a paper last year asking that Congress reform the Electronic Communications Privacy Act (ECPA), the statute that authorizes 2703(d) orders. Under the current regime, he wrote, it is “reasonable to infer that far more law-abiding citizens than criminals have been tracked.” The culprits? Secrecy and a low legal threshold.

While Magistrate Judge Smith estimated that approximately 30,000 2703(d) orders are issued every year, many of them are never disclosed to the targets of the surveillance. If you don’t know the government has issued a surveillance order seeking your information, you cannot very well challenge it in court. That’s what happened to Augustine. And that’s why it is only now, in 2013, that the ACLU is arguing a case addressing the constitutionality of using these orders to obtain location information from our cell phone companies

A positive ruling in the Augustine case could change this state of affairs, at least where location tracking is concerned in Massachusetts. If the judges agree with the ACLU (and amici EFF and the Massachusetts Association of Criminal Defense Lawyers), the probable cause warrant standard will prevail when law enforcement seeks to track us through our cell phones.

The result of such a ruling would mean not only enhanced privacy, but also enhanced due process. It would mean that police would be limited to investigations of people against whom they have evidence to believe are engaged in criminal activity – and bar them from conducting broad fishing expeditions into our personal lives.

Critically, the ruling could also send a strong message to law enforcement that article Fourteen and the Fourth Amendment play robust roles in the digital 21st century, and that when in doubt, they should seek a warrant to conduct invasive electronic surveillance. That’s an especially important message because technology changes at a much quicker pace than does the law.

Our location history and real time travel patterns say a lot about us, including where we live and work, whether we are a regular drinker or gym-goer, if we have had abortions or visited fertility clinics, if and how often we worship and at what place, and much, much more. These pieces of information alone are extremely revealing and deserving of a privacy-protective warrant requirement. Together, they can paint a frighteningly accurate portrait of our lives.

Massachusetts should require a warrant for cell phone location tracking. We need to ensure that the technologies that enable us to live more interconnected and mobile lifestyles don’t infringe on our most important rights, among them the right to be left alone. Let’s hope the Commonwealth’s highest court agrees.

© 2018 ACLU of Massachusetts.