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 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 state’s Supreme Judicial Court agrees, Massachusetts residents will all benefit from significantly enhanced privacy protections.

The Massachusetts case comes as courts around the country grapple with this question. Federal courts considering this question are divided, while New Jersey’s Supreme Court found that under that state’s constitution, a warrant was required.

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The law in Massachusetts, like in most places nationwide, is woefully out of date.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.

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.

An expanded version of this post can be found on the ACLU of Massachusetts’ blog.