Privacy SOS

Massachusetts legislature advances key electronic privacy proposal

Last week the Supreme Court ruled unanimously in favor of our electronic privacy, ushering a key portion of the relevant law into the digital age. Thanks to the ruling in Riley, when police arrest someone, officers must now secure a warrant before rifling through the contents of the arrestee’s cell phone. The ruling will have an immediate and profound impact on the privacy rights of the approximately twelve million people arrested in the United States each year.

If warrants are needed to search cell phones, shouldn’t they also be required before officers can get info from your phone company? 

Yes, and federal courts are beginning to address that issue, too, though in a piecemeal fashion. Earlier last month, the Eleventh Circuit Court of Appeals found that police must obtain a warrant before asking our cell phone companies for details about where we’ve been, called cell site location information. The court ruled that even one piece of location data can tell the government a lot about our private lives, and therefore should be protected unless law enforcement can show probable cause to believe the information will return evidence of a crime.

So the courts have been moving the ball in the right direction on electronic privacy, but major gaps remain. The judicial branch can’t be the only part of government to advance 21st century privacy law.

Thankfully, it appears that the Massachusetts state legislature’s Judiciary Committee agrees. This week, that important committee moved forward legislation known as the Electronic Privacy Act, giving it a favorable report. (At the same time, the committee tabled Attorney General Martha Coakley's troubling proposal to expand the wiretap statute.)

The Electronic Privacy Act, like the Supreme Court’s decision in Riley, applies centuries old legal precedent to new technologies. The bill requires that law enforcement obtain warrants based on probable cause before accessing our personal electronic information held by phone and internet service providers – before reading our emails and texts, sorting through information about us stored in the cloud, or tracking our physical locations through our personal devices.

If a file stored in your desk at home is protected by a warrant, the files you store in your Dropbox folders online should have that same protection. The Electronic Privacy Act recognizes that the law is obsolete, and that we need to reform our statutes in order to ensure that technology doesn’t fundamentally change the character of our open society. (Congress is slowly moving to update federal electronic communications privacy law, but we can't wait.)

The Supreme Court was correct when it articulated in its past three, unanimous decisions to update electronic privacy law that new technologies shouldn’t change the basic balance of power between the government and the people. As Justice Roberts wrote in Riley,

Modern cell phones are not just another technological convenience. The fact that technology now allows an individual to carry [huge quantities of personal] information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.

The leadership of the Massachusetts legislature should heed that call, and quickly move to pass the Electronic Privacy Act. Cell phones have been in widespread use for about fifteen years in the United States, but the highest court in the land only last week moved to protect their contents from warrantless police spying. We can’t wait another fifteen years for each of these related issues to make their way through the court system.

Senator Spilka’s bill is a comprehensive fix to huge gaps in obsolete privacy law—gaps that expose all of us to invasive, warrantless police fishing expeditions. If police need to invade our privacy, they should do what they’ve long done, and what Justice Roberts and the Supreme Court have advised with respect to cell phone searches incident to arrest: Get a warrant.

The highest court in the land has issued a very clear ruling about the shape of electronic privacy law to come. Massachusetts legislators: Now’s your opportunity to make history by beating the judiciary to the punch.

Massachusetts residents: Take action now! Call your state senator and Senate president Therese Murray. Tell them you want your privacy, and to quickly pass the Electronic Privacy Act! Like the Supreme Court said, if police want to spy on us, they should get a warrant!

© 2023 ACLU of Massachusetts.