POSTED BY Micah-Shalom Kesselman
Complementing an article written by one of our very own in our most recent published issue, the Supreme Judicial Court of Massachusetts recently ruled on the issue of whether a warrant is needed to obtain cellular site location information (CSLI) from a third party under the state constitution. The lower courts had held that the state was required to obtain a warrant to access Shabazz Augustine’s CSLI, regardless if it retrieved the information under Federal law. The highest court in Massachusetts took the case on appeal and listened to arguments from both the state and Augstine, represented by the American Civil Liberties Union of Massachusetts, as well as receiving numerous amicus briefs from organizations such as the Electronic Frontier Foundation.
The SJC held that “the government-compelled production of the [Augstine’s] CSLI records by Sprint constituted a search in the constitutional sense to which the warrant requirement of art. 14 applied.” Before anyone celebrates this as a victory for privacy rights, it should be noted that the court explicitly refrained from wading into a Fourth Amendment analysis and decided the issue strictly along the contours of Article 14 of the Massachusetts Constitution. In its opinion, the SJC observed that “a majority of [Federal] courts [have] ruled that an individual has no reasonable expectation of privacy in the CSLI because it is a third-party business record.”
This is certainly a major and important victory for privacy advocates in Massachusetts. There are still major issues to be resolved. As the SJC itself explained, though the Circuits generally fall on the side of third-party CSLI being accessible without a warrant, there is still a split. The nature of federal law enforcement also makes it more likely that such investigative practices will be useful as compared to state law enforcement. Furthermore, the familiar issues of tracking via digital footsteps are still kicking about. So, though a privacy victory, let’s keep a practical sensibility and keep in mind the long haul still to go.
