Angiulo: Cell Phone Tracking in Massachusetts
Monday, October 05, 2015
When it comes to cell phone tracking, the court of Massachusetts released two cases of note this past week. Both deal with the same topic, but add differently to the landscape. First is the case of Commonwealth v. Estabrook which speaks, in part, to when a search warrant will be required in order to retrieve tracking information from a cellphone. The case of Commonwealth v. Tewolde from a few days later gives a forecast for what the battle between the government and an accused may look like if cell data was seized without a warrant.
The Estabrook case explains that the cell phone in your pocket is producing an incredible amount of data that gets stored by your carrier. In that data are two types of cellular site location information (“CSLI”) including telephone call CSLI and registration CSLI. The basic difference between the two is that they are labels for records of different information. Telephone call CSLI logs only include the tower location used when a call is made. Registration CSLI logs, on the other hand, provide location information every seven seconds while a phone is turned on.
The court in Estabrook went on to look at what it takes to get access to telephone call CSLI. In their analysis, they applied existing precedent to draw the line between legal investigation and use of federal law to conduct illegal tracking in Massachusetts. The federal law mentioned is an administrative procedure that requires cell phone carriers to produce these records if law enforcement can provide reasonable grounds that the material will be relevant to an ongoing criminal investigation.
Note the use of the words “reasonable grounds.” As the court explained in Estabrook that is a standard far lower than the probable cause required for the issuance of a search warrant. This matters because Massachusetts case law expressed a personal privacy interest in our CSLI generally. That privacy interest requires any request for more than six hours of information be gathered only through a search warrant with an application that includes probable cause for the request.
The Estabrook case goes on to explain that if the police only want six hours of information for introduction at trial, but gather two weeks through administrative process, the seizure of the raw data was improper. It is the vehicle by which the data is gathered that matters not what the government intends to use at trial.
The related case of Tewolde from the Massachusetts Appeals Court looks at what a court may do if a violation of such a privacy right occurs. Say, for example, an administrative order gathers up more time than is permitted. It is then on a defendant to move to suppress the CSLI data that was seized. When such a motion is filed, the trial court then looks to the administrative application to see if it contained probable cause. If so, the evidence will be admitted at trial. If not, it will be excluded.
There is a distinct school of thought that if you aren't doing anything wrong, you should not worry about surveillance. From a practical perspective this makes sense. Another perspective is that many of the things we enjoy are a result of the ordered liberty arising out of our Constitutional Democracy. It follows that we all have an interest in making sure the state and federal constitutions are respected.
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