Massachusetts high court requires warrant for cell phone location information

Supreme Judicial Court rules that people have a reasonable expectation of privacy for data that cell phone companies hold about them.

February 18, 2014

Christopher Ott, communications director, 617-482-3170 x322,
Raquel Ronzone, communications specialist, 617-482-3170 x335,

BOSTON -- The Massachusetts Supreme Judicial Court ruled today in Commonwealth v. Augustine, an appeal litigated by the American Civil Liberties Union of Massachusetts and the national ACLU, that a warrant will often be required when local or state police attempt to track the cell phones of Massachusetts residents.

The SJC heard arguments in Augustine on October 10. The central issue was whether people have a constitutionally protected interest in the location data that is automatically generated when 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 time. It has become common for cell phone service providers to turn over these records to the government. For example, then-Representative Ed Markey learned last year that Sprint alone received 196,434 orders for location data in a five-year period.

Today's decision holds that the state constitution's warrant requirement applied to the Commonwealth's attempt to obtain two weeks' worth of CSLI about ACLU of Massachusetts client Shabazz Augustine. The Court reasoned that "the tracking of [Augustine's] movements in the urban Boston area for two weeks was more than sufficient to intrude upon [his] expectation of privacy safeguarded" by the state Declaration of Rights. It did not matter, the Court held, that "CSLI is business information belonging to and existing in the records of a private cellular service provider."

The following statement may be attributed to ACLU of Massachusetts legal director Matthew R. Segal:

"Today's ruling is an enormous victory for privacy in the Commonwealth, and it means that Massachusetts is taking an important lead in dealing with the privacy implications of the digital age. Under this ruling, turning on a cell phone does not justify warrantless local and state surveillance of when, where and how you use it.

The ACLU took this case because people carry their phones everywhere and use them constantly, so the government can learn much about who we are by finding out where we are while our phones are in use. We argued that this sensitive information deserves the protections of the state's warrant requirement, and the Court agreed."

The following statement may be attributed to ACLU of Massachusetts staff attorney Jessie J. Rossman:

"Though it deals with the Massachusetts Declaration of Rights, the reasoning of today's ruling directly contradicts the justifications that the U.S. government has used for NSA surveillance.

"Relying on a misinterpretation of decades-old case law, the government insists that no one can have a constitutionally protected privacy interest in information that third parties—such as cell phone companies or internet providers—collect about when, where and how we use their services. Today's ruling explains very clearly that the government's reasoning is incorrect. Even if a third party has sensitive information about us, the government should still have to get a warrant before obtaining that information."

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