Supreme Judicial Court Hears Case Thursday on Warrantless Cell Phone Location Tracking

October 9, 2013 4:26 pm

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ACLU of Massachusetts case focuses on whether police need probable cause and a warrant to track cell phones of Commonwealth residents.

October 9, 2013

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BOSTON — On Thursday, October 10 at 9am, the Massachusetts Supreme Judicial Court (SJC) will hear an American Civil Liberties Union of Massachusetts case on whether police need probable cause and a warrant to track the cell phones of Massachusetts residents.

The central issue in the case, Commonwealth v. Augustine, is whether Massachusetts residents have a constitutionally protected interest in the location data that is automatically generated whenever they make or receive cell phone calls. This data, known as cell site location information or CSLI, can be used to reconstruct a person’s movements and location over long periods of time.

In Augustine, state prosecutors argue that they can acquire CSLI on Massachusetts residents without obtaining a warrant and without establishing probable cause that the cell phone user committed a crime. They argue that this information is not the private information of cell phone users because it is collected by cell phone providers. The National Security Agency has relied on that same argument to defend its practice of acquiring the records for all cell phone calls, and it has become increasingly common for cell phone service providers to turn over records to authorities on demand. For example, then-Representative Ed Markey learned last year that Sprint alone received 196,434 orders for location data in a five-year period.

Together with the national ACLU, the ACLU of Massachusetts argues in Augustine that this information is private because it reveals detailed information about people’s lives. The SJC and a majority of Justices on the United States Supreme Court have already held that extended government surveillance using GPS monitoring violates a reasonable expectation of privacy within the context of GPS tracking. Targeting a person’s movements using her cell phone raises even more serious concerns. “We carry our phones with us everywhere these days, including our homes, doctors’ offices and places of worship,” said Jessie Rossman, staff attorney with the ACLU of Massachusetts. “The disclosure of these intimate details to the government inarguably violates a reasonable expectation of privacy.”

In July, the New Jersey Supreme Court held that people have a constitutional right to privacy in cell phone location information. “The SJC is poised to become only the second state supreme court to address this important question,” said Matthew Segal, legal director for the ACLU of Massachusetts, “and we are asking it to confirm that the mere act of using a cell phone does not risk warrantless government tracking.”

The hearing takes place at the John Adams Courthouse, at Pemberton Square in Boston, in Courtroom One on the second floor.

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