Massachusetts Supreme Court Requires Warrant For Cellphone Location Data

by Andrew C. McCarthy

The Supreme Judicial Court of Massachusetts ruled today that police need a judicial warrant issued on probable cause to obtain cellular telephone location information (CSLI) records maintained by cellphone service providers. That information can be used to show that a person moved from place to place during a call, which can be highly relevant evidence in a criminal investigation. In Commonwealth v. Augustine, the case decided today, the state wants to use it against the defendant in a murder case.

The divided court (5-2) decided the case under Article 14 of the Massachusetts Constitution, not the Fourth Amendment to the U.S. Constitution. As explained in my weekend column (on Senator Rand Paul’s lawsuit challenging the NSA metadata program on constitutional grounds), the Supreme Court held in Smith v. Maryland (1979) that the Fourth Amendment does not provide phone company customers with protection against the government’s acquisition without a warrant of phone usage records maintained by the phone company. There is no property interest in them (the Fourth Amendment is essentially about preventing government trespass on property – your person, house, papers and effects) and there is no “expectation of privacy” because you know when you use the phone that your service provider is maintaining records of that usage.

The state supreme court reasons that you do have an expectation of privacy in physical movements from place to place. This flies in the face of the Supreme Court’s Smith case but, again, the state was not required to follow Smith since it was construing the Massachusetts Constitution, not the Fourth Amendment. It is also worth noting, as I detailed in the column, that the NSA’s metadata program does not collect CSLI – notwithstanding that Senator Paul’s lawsuit stresses CSLI as a purported justification for ignoring Smith (i.e., we did not all use cellphones back in 1979 so, the argument goes, technology has made the decision obsolete).

Another interesting point: although the law before today’s ruling did not require police in Massachusetts to get a warrant for CSLI, it is not as if there were no privacy protections at all. Under the federal Stored Communications Act, the police had to get court authorization by demonsrating “specific and articulable facts showing that there are reasonable grounds to believe that the … records or other information sought, are relevant and material to an ongoing criminal investigation.” The Massachusetts supreme court held that this was not enough protection – which certainly seems odd to me given that we are talking about third-party business records that customers do not have a property interest in. The court said only a warrant based on probable cause will do … but it did remand the case to the lower court for a determination of whether the specific and articulable facts in the affidavit police submitted to get authorization under the Stored Communications Act were the functional equivalent of probable cause.