Location privacy  

Network-based location technologies

Historic cell site location information: The SJC has established a warrant requirement to obtain historical telephone call cell site location information of six hours or more.  

Commonwealth v. Augustine, 472 Mass. 448 (2015)

• The Court held that under art. 14 of the Massachusetts Declaration of Rights, a person has a reasonable expectation of privacy in the location data that cell phone companies hold about them. Therefore, a warrant is generally required for historical cell site location information (“CSLI”).  
• For shorter periods of time,the Court noted “there is some period of time for which the Commonwealth may obtain a person’s historical CSLI by meeting the standard for an 18 USC § 2703(d) order alone (relevance and materiality) because the duration is too brief to implicate the person’s reasonable privacy interest.”  

Commonwealth v. Estabrook, 472 Mass. 852 (2015)  

• The Court confirmed that the Commonwealth may obtain historical telephone call CSLI for a period of six hours or less without obtaining a search warrant because such a request does not violate the person’s constitutionally protected expectation of privacy. 
• However, the Court expressly limited this 6-hour exception to the warrant requirement to telephone call CSLI (which is only tracked when a phone makes or receives a phone call) and not registration CSLI (which, depending on your provider, is tracked every 7-12 seconds).  
• The Court also emphasized that the relevant time period to trigger a warrant requirement is the length of time for which the CSLI is requested, not the length of time of CSLI which the Commonwealth ultimately seeks to introduce at trial.  

Real-time CSLI: The SJC has established that police must obtain a warrant requirement in order to request that a service provider obtain real-time cell site location information.   

Commonwealth v. Almonor, 482 Mass. 35 (2019)

• The Court held that a real-time “pinging” of a cell phone location by a service provider at the request of police is a search under Article 14 of the Massachusetts Declaration of Rights, and that it will generally require a warrant unless it falls within another warrant exception, such as exigent circumstances 
• The Court explained that “by causing the defendant’s cell phone to reveal its real-time location, the Commonwealth intruded on the defendant’s reasonable expectation of privacy in the real-time location of his cell phone.” 

Cell-site simulators (stingrays): The SJC’s reasoning in Almonor also suggested that they may similarly require a warrant for government use cell-site simulators.

• Specifically, footnote 13 in the majority opinion references stingray and goes on to state: “[t]he privacy concerns raised by pinging a cell phone apply equally to any circumstance where the cell phone’s location information is generated as a direct result of the government’s manipulation of an individual’s cell phone.” 

Tower dumps: Tower dumps provide law enforcement with CSLI from every device that connected to a particular cell site within a specified period, allowing law enforcement to infer that the owners of those devices most likely were present in that site’s coverage area during that time. The SJC has established that the use of tower dumps can intrude upon reasonable expectation of privacy. 

Commonwealth v. Perry, 489 Mass. 436 (2022)  

• In this case, investigators had obtained seven tower dumps spanning seven different days over the course of slightly more than one month. 
• The collection and analysis of tower dumps provided investigators with highly personal and previously unknowable details of the defendant’s life, and although each tower dump was relatively limited in time to periods immediately before and after specific robbery for which CSLI was sought, the collective whole of personal and private information obtained would have been impossible to obtain through the use of traditional surveillance techniques. 
• As a result, the Court held that the Commonwealth’s aggregate use of “tower dumps” of CSLI in this case intruded upon the defendant’s reasonable expectation of privacy, 
• The Court also established that only a judge may issue a search warrant for tower dumps, and that any such warrant must include protocols for the disposal of any data that falls outside the scope of the search.

GPS device location tracking

Use of a Global Positioning System (“GPS”) tracking device: The SJC has established a warrant requirement to install and use a GPS tracking device on a person’s car.   

Commonwealth v. Connolly, 454 Mass. 808 (2009)

• The Court held that the police’s installation and use of a surreptitious global positioning system (GPS) device on a criminal defendant’s motor vehicle constitutes a seizure requiring a warrant for purposes of art. 14 of the Massachusetts Declaration of Rights, where the installation required not only entry by police into the vehicle for one hour, but also the operation of the vehicle’s electrical system, resulting in an ongoing physical intrusion. 
• The Court also held that in addition, and apart from the installation of the tracking device, the police use of the vehicle to conduct GPS monitoring for police purposes also constituted a seizure for which a warrant would be required. The Court held that “[w]hen an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to track its movements interferes with the defendant’s interest in the vehicle notwithstanding that he maintains possession of it.” This happens because “[t]he owner of property has a right to exclude it from “all the world,” […], and the police use “infringes that exclusionary right.” […]. This interference, the Court continues, “occurs regardless [of] whether the device draws power from the vehicle and regardless [of] whether the data is transmitted to a monitoring computer” because “[i]t is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.” 

 Commonwealth v. Rousseau, 465 Mass. 372 (2013)

• The Court confirmed that under art. 14 of the Massachusetts Declaration of Rights, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at their movements, without judicial oversight and a showing of probable cause. 
• The Court went on to hold both the owner and operator of a motor vehicle and a passenger in a vehicle that is subject to extended GPS surveillance have standing to challenge the sufficiency of a GPS warrant.
  

Automatic License Plate Readers (ALPRs) 

Commonwealth v. McCarthy, 484 Mass. 493 (2020)

• The Court favorably cited the mosaic theory, noting that a “detailed account of a person’s movements, drawn from electronic surveillance, encroaches upon a person’s reasonable expectation of privacy because the whole reveals far more than the sum of the parts.”  
• The Court held that the Commonwealth’s limited use of ALPR data from four cameras at fixed locations on two bridges in this particular case did not trigger a warrant requirement. 
• However, without establishing the particular triggering threshold, the Court also stated that with enough cameras in enough locations the use of historic location data from an ALPR system over a certain period of time would invade a reasonable expectation of privacy that would require a warrant.  
• The Court also flagged that a reasonable expectation of privacy analysis needed to consider the placement of the cameras themselves, and in particular, whether they surveilled “constitutionally sensitive locations” like “the home, a place of worship, etc.” 
• Without establishing the particular triggering threshold, the Court also noted that “with cameras in enough locations,” the Commonwealth’s use of real-time ALPR data “could implicate constitutional search protections by invading a reasonable expectation of privacy in one’s real-time location.” 

 Camera Surveillance  

The SJC has established a warrant requirement for continuous, long-term pole camera surveillance targeted at a residence.

Commonwealth v. Mora, 485 Mass. 360 (2020) 

• The Court held that under art. 14 of the Massachusetts Declaration of Rights, the Commonwealth’s use of hidden pole cameras that directly target a residence on a continuous, long-term surveillance, invades a reasonable expectation of privacy that triggers a warrant requirement. The Court explained its reasoning by noting that such surveillance provides police officers a far richer profile of the targeted individuals’ lives than would have been possible through traditional human surveillance. 

Commonwealth v. Comenzo, 489 Mass 155 (2022) 

• The Court confirmed that the warrant requirement established in Mora applies to continuous pole camera surveillance of an apartment building for at least thirteen days.  

 Search of a cell phone 

Commonwealth v. White, 475 Mass. 583 (2016) 

• The Court held that probable cause to search or seize a person’s cellular telephone may not be based solely on evidence of a joint venture crime and an officer’s opinion that coventurers often use cell phones to communicate with each other. Instead, police must have information establishing the existence of particularized evidence likely to be on the phone.  

Commonwealth v. Snow, 486 Mass 582 (2021) 

• The Court held that, taken as a whole, (1) evidence that the defendant made a cell phone call soon after the shooting to the person who rented the car used in the murder, (2) a reasonable inference that crime was preplanned and (3) evidence of threatening cell phone communications between the victim and a coventurer provided a sufficient nexus between the crime and the phone to authorize a search of the defendant’s cell phone.  

• In so holding, the Court noted that “in isolation, none of these facts would be sufficient to support a nexus between the crime and the defendant’s cell phone” and that White remained good law. Based on the Court’s holding that the police had probable cause to search the defendant’s cell phone for communications, the Court concluded that communications in this case included call logs, text messages, and Snapchat video recordings. Finally, the Court confirmed that a warrant for a cell phone search must contain a temporal limit in order to be valid. In so doing, it noted that the appropriate length of time in any given case would be fact specific. 

Commonwealth v. Dorelas, 473 Mass. 496 (2016) 

• Where the Court concluded that the affidavit established probable cause that a cellphone could contain evidence of communications that would link the defendant to the crime, the Court held that the warrant properly authorized the search of not just call history and text message files, but also photograph files based on its reasoning that communications could come in photographic forms. 

Body-worn cameras (BWC)

Commonwealth v. Yusuf, 488 Mass. 379 (2021) 

• The Court held that the use of BWC footage for investigatory purposes unrelated to the original incident requires a warrant. 
• The Court began by holding that a police officer’s use of a body-worn camera in a home and the recording of the areas of the house through which the officer moved as well as his interaction with people in the home is not a search in the constitutional sense so long as the officer was lawfully present in the home and the camera captured only the areas and items in the plain view of the officer, in a manner consistent with the reasons for his lawful presence. 
• However, the Court went on to hold that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the review of legally recorded video footage obtained from BWCs for investigatory purposes unrelated to the original incident that prompted the use of the BWCs requires a warrant because it is an invasion of privacy that otherwise violates the right to be protected from unreasonable searches and seizures. 

Other issues 

Encryption

Commonwealth v. Gelfgatt, 468 Mass. 512 (2014)

• The Court held that the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights right to be free from self-incrimination, did not prevent the government from compelling criminal defendants to disclose the encryption key to computer file if the defendant’s compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what it already knew t. In the instant case, the Court held that  the factual statements that would be conveyed by the defendant’s act of entering the encryption key in the computers (i.e., his ownership and control of the computers and their contents, knowledge of the fact of encryption, and knowledge of the encryption key) were “foregone conclusions” and, therefore, the act of decryption was not a constitutionally protected  testimonial communication . 

 Commonwealth v. Jones, 481 Mass. 540 (2019)

• The Court held that before the government can obtain an order compelling a defendant to decrypt an electronic device under the “foregone conclusion” exception to art. 12, it must first prove beyond a reasonable doubt that the defendant knows the password. In so doing, it emphasized “whatever the standard under the Fifth Amendment may be, requiring the Commonwealth to bear this high burden is necessary to ensure that the art. 12 rights of defendants are adequately protected, and reflects our recognition that a ‘person’s right to be free from self-incrimination is a fundamental principle of our system of justice,’ and that we have imposed even higher standards than the Fifth Amendment to protect that right.”  

Text messages

Commonwealth v. Fulgiam, 477 Mass. 20 (2017)

• The Court held that under art. 14, police must get a warrant before obtaining text messages from a cell phone service provider.  

Commonwealth v. Delgado-Rivera, 487 Mass 551 (2021)

• The Court held that defendant did not have a reasonable expectation of privacy in a text message that he sent to his co-defendant, and therefore could not challenge the warrantless search of his co-defendants cell phone. In so doing, the Court left for another day whether using an encrypted messaging application would change its analysis. (Please note that Commonwealth v. DeJesus, 489 Mass. 292 (2022) abrogated Delgado Rivera to the extent Delgado Rivera reiterated prior precedent stating that defendants needed to establish both standing and a reasonable expectation of privacy in order to raise an art. 14 challenge – defendants now only need to establish a reasonable expectation of privacy. However, Delgado Rivera stated that it had reached its holding irrespective of standing. See, e.g., 487 Mass at 5559(“Without deciding whether Delgado-Rivera has standing under art. 14, we therefore turn to consider whether he enjoyed an expectation of privacy in the text messages he sent[.]”)).    

 Social media

Commonwealth v. Carrasquillo, 489 Mass. 107 (2022)

• In considering whether art. 14 protected certain kinds of social media posts, the Court declined to adopt the Commonwealth’s argument that the act of posting any content to a social media account de facto eliminates any reasonable expectation of privacy in that content, and instead decided the case based on the totality of the circumstances. In the instant case, the defendant was unaware of their privacy settings, he permitted unknown individuals to gain access to his content, and shared content after accepting a friend request on snapchat from an undercover officer. Under those circumstances, the Court held that a person does not have a constitutionally protected expectation of privacy, and therefore concluded that the use of the content by the police did not constitute an unreasonable search. In so doing, the Court once again reiterated “that a categorical rule that individuals do not maintain a reasonable expectation of privacy in information provided to third parties through electronic sources is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”  

Have we missed something? Email us. efalcon at aclum dot org. The above is meant as a public education resource and is not legal advice. If you need legal advice, please obtain a lawyer. You can also contact the ACLU of Massachusetts.