By Zoe Bedell – Edited by Corey Omer
Commonwealth v. Shabazz Augustine, SJC-11482 (Sup. Jud. Ct. Suffolk Feb. 18, 2014).
Slip opinion hosted by Universal Hub
On February 18, 2014, the Massachusetts Supreme Judicial Court (“SJC”) agreed with a Superior Court ruling that the Commonwealth must seek a warrant in most cases before obtaining cell phone records that track an individual’s location. The SJC nevertheless vacated the lower court’s order granting the defendant’s motion to suppress the records and remanded the case for a hearing on whether the Commonwealth had met the higher ‘probable cause’ standard required for the issuance of a warrant. Slip op. at 1–2, 13.
In a 5-2 decision, the SJC held that the Commonwealth obtaining this tracking information — called historical cell site location information (“CSLI”) — from a cellular service provider constitutes a search within the meaning of art. 14 of the Massachusetts Declaration of Rights and therefore requires a search warrant supported by probable cause. The Commonwealth had previously obtained such information by applying for an order under 18 U.S.C. § 2703(d) of the Stored Communications Act (“SCA”), which requires only proof of reasonable suspicion. So, this case joins an earlier SJC decision, Commonwealth v. Rousseau, 465 Mass. 372 (2013), opinion hosted by Justia.com, in increasing privacy protections under the Massachusetts Constitution. Jacob Gershman of the Wall Street Journal summarizes the opinion.
The case arises from the 2004 murder of Julaine Jules. Police suspected her former boyfriend Shabazz Augustine and obtained a court order under the SCA granting access to two weeks worth of his cell phone records, including CSLI, to determine his whereabouts at the time of the killing. But, to obtain the court order, the Commonwealth only had to show that the records were material to an ongoing investigation. Under the third-party doctrine, an individual has no legitimate expectation of privacy in third-party business records containing information that the individual voluntarily conveyed to the company in the ordinary course of business. This includes, for instance, phone numbers dialed on a telephone. However, the SJC held that the third-party doctrine did not apply to CSLI because the defendant had not voluntarily shared the data with his cellular service provider and because CSLI “may yield a treasure trove of very detailed and extensive information about the individual’s ‘comings and goings’ in both public and private places . . . .” Slip op. at 9.
In declining to follow the traditional approach, the court distinguished CSLI from phone numbers dialed because location data is not central to a consumer’s expectations of what data he or she is sharing when making a phone call. As the American Civil Liberties Union summarized the argument, “you cannot control whether or not your phone sends [CSLI], . . . [a]nd while you purchased your phone in part to make phone calls on it, you certainly didn’t buy a phone so that your cell phone company and the police could track your whereabouts.” Consumers reasonably expect that their location data is private, and the government must therefore obtain a warrant before it may access it.
The Court also indicated that it was concerned, not just by the nature of the tracking information, but also by the amount of data that had been collected. While the Court declined to draw a bright line establishing an acceptable time frame, it clearly stated that the two weeks covered by the order in this case was too much. Slip op. at 11. The Court’s implicit acceptance of this time-based framework (also seen in cases such as U.S. v. Jones, 565 U.S. 945 (2012), opinion hosted by Google Scholar, and U.S. v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), opinion hosted by Google Scholar) could potentially lead to interesting questions about how courts will establish clear rules regarding acceptable data collection time frames, as Orin Kerr discusses.
Judges Gants and Cordy dissented, believing that the Court did not adequately address the constitutional differences between telephone call CSLI (location information collected only when the suspect was receiving or making a call) and registration CSLI (location information sent continually whenever the phone is on). They argued that, while registration CSLI deserves constitutional protection, telephone call CSLI is equivalent to traditional telephone toll records, and therefore should not require a warrant issued only on proof of probable cause. Slip op. at 15–17.
While this decision is only binding within Massachusetts, it establishes a privacy-favoring benchmark as other jurisdictions begin wrestling with similar new technology questions with greater frequency.