by Jennifer Lynch, Electronic Freedom Foundation
There’s heartening news for our location privacy out of Massachusetts. The Supreme Judicial Court, the state’s highest court, ruled that police access to real-time cell phone location data — whether it comes from a phone company or from technology like a cell site simulator — intrudes on a person’s reasonable expectation of privacy. Absent exigent circumstances, the court held, the police must get a warrant.
In Commonwealth of Massachusetts v. Almonor, police had a phone carrier “ping” the cell phone of a suspect in a murder case — surreptitiously accessing GPS functions and causing the phone to send its coordinates back to the phone carrier and the police. This real-time location data pinpointed Mr. Almonor’s phone to a location inside a private home. The state argued it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old. A trial court disagreed and the state appealed.
EFF filed an amicus brief in this case in partnership with the ACLU and the Massachusetts Association of Criminal Defense Lawyers. We asked the court to recognize, as the Supreme Court did in U.S. v Carpenter, that people have a constitutional right to privacy in their physical movements. We argued that, because people have their phones with them all the time, and because the location information produced by the phone can reveal our every move — where and with whom we live, socialize, visit, vacation, worship, and much more — the police must get a warrant to access this sensitive information.
The Massachusetts court held that “[m]anipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion” than accessing the historical location data at issue in Carpenter. It concluded that “by causing the defendant’s cell phone to reveal its real-time location, the Commonwealth intruded on the defendant’s reasonable expectation of privacy in the real-time location of his cell phone.” The court recognized both that cell phone use is ubiquitous in our society, and that a phone’s location is a “proxy” for its owner’s location. The court noted that “society’s expectation has been that law enforcement could not secretly and instantly identify a person’s real-time physical location at will,” and “[a]llowing law enforcement to immediately locate an individual whose whereabouts were previously unknown by compelling that individual’s cell phone to reveal its location contravenes that expectation.”
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