Portland, Maine—The Electronic Frontier Foundation (EFF) and the ACLU are urging the state’s highest courts in Massachusetts and Maine to rule that law enforcement agents need a warrant to access real-time location information from cell phones, a clear application of a landmark U.S. Supreme Court ruling from June.

EFF, in partnership with ACLU chapters in Massachusetts and Maine, is asking the state courts to recognize, as the Supreme Court did in U.S. v Carpenter, that people have a constitutional right to expect privacy in their physical movements, which can be revealed in minute detail by the cell phones they carry. Cell phone use is ubiquitous in our society. People have their phones with them all the time, and the location information produced by the phone can reveal our every move—where we live, socialize, visit, vacation, worship, and whom we meet with, including friends, colleagues, relatives, doctors, partners, political associates, and much more. In Carpenter, the Supreme Court said that government cell phone tracking “achieves near perfect surveillance,” and is like the government attaching ankle monitors on cell phone users. Cell phone location information searches fall under the Fourth Amendment and require a warrant, the court ruled.

Courts around the country are now being asked to address the scope of this ruling. Cases in Massachusetts and Maine, which were pending on appeal when the Carpenter ruling was issued, are among the first to deal directly with how the Supreme Court’s ruling should be applied when police track and locate people in real-time.

In a brief filed today in Maine and one filed August 20 in Massachusetts, EFF said that while the Carpenter decision involved historical cell phone location data, the rule articulated by the Supreme Court—that collection of cell phone location data from third party phone companies is a Fourth Amendment search that requires a warrant—applies equally to real-time collection.

In State of Maine v. O’Donnell, police asked Verizon to provide cell phone location information on the phones of two burglary suspects. The carrier “pinged” the phones—surreptitiously accessing GPS functions and causing the phones to send their coordinates back to Verizon—and transmitted the locations to police, who arrested the pair. A trial court ruled the suspects’ Fourth Amendment rights weren’t violated because the location information was obtained from a third-party: Verizon.

In Commonwealth of Massachusetts v. Almonor, police had a phone carrier ping the cell phone of a suspect in a murder case. The real-time location search pinpointed the suspect in a private home. The state contends it can warrantlessly get cell phone location data to locate anyone, anytime, at any place for up to six hours. A trial court disagreed and the state appealed.

“Our right to privacy in our cell phone location information is the same whether the police seek data in real-time or past data. Both implicate our rights to keep our everyday travels private,” said EFF Senior Staff Attorney Jennifer Lynch. “The Maine and Massachusetts courts should clarify that Carpenter establishes important limitations on government searches of location information, without which, as the Supreme Court said in Carpenter, law enforcement agencies will have unfettered powers of surveillance.”

The Maine court should correct the O’Donnell trial court’s reliance on the “Third Party Doctrine,” an outdated legal standard that says people don’t have an expectation of privacy in information they share with a third-party.

“The Supreme Court expressly ruled that the doctrine doesn’t apply to cell phone location information because cell phone use is so pervasive and indispensable in modern life,” said EFF Staff Attorney Andrew Crocker. “The court recognized that when police seek location information from carriers, that’s an intrusion on privacy that requires a warrant. The Maine and Massachusetts courts should do the same.”

For the O'Donnell brief:

https://www.eff.org/document/odonnell-amicus-brief-eff-aclu

For the Almonor brief:

https://www.eff.org/document/almonor-amicus-brief-eff-aclu

For more on the Carpenter decision:

https://www.eff.org/cases/carpenter-v-united-states