On February 18, the Massachusetts Supreme Judicial Court declared that here in Massachusetts, state cops actually do have to get a warrant if they want to access your cellphone location data.
This is what an independent judiciary looks like. The Justices of our Supreme Judicial Court have withstood over half a century of New England winters. They have endured the long decades of the Curse of the Bambino. Their knotted muscles are carved from whalers’ scrimshaw. They are not to be messed with. The obsequious servants of the surveillance state on the FISA Court could learn a thing or two from them.
The facts of the case are these. Julaine Jules was murdered in 2004. In 2011, the defendant, Shabazz Augustine, who had been a boyfriend of hers, was indicted on the strength of cellphone location data obtained from Sprint. The case quickly turned into a test of important constitutional privacy principles.
See, when the state law enforcement officials investigated the case, they decided to obtain Shabazz Augustine’s data using what’s known as a “Section 2703(d) order.” This federal law (inadequately, in our view) requires only reasonable suspicion for such data to be obtained, not a probable-cause warrant. The question at issue was whether the Massachusetts state Constitution requires a warrant anyway, even when the Fourth Amendment (as misused by the federal government) does not.
The key argument centered on what’s known as the “third-party doctrine.” Essentially, the state argued that Shabazz could have no reasonable expectation of privacy in his cellphone location data, because the data was held by Sprint, not by him, and therefore, having “disclosed” it to Sprint, he had abandoned the data in law, and Sprint could grant access to it freely. Federal courts have disagreed on whether the existing Supreme Court decisions in Miller and Smith that established this doctrine, mean that no warrant is required for cellphone location data.
The Miller and Smith decisions predate the invention of cellphones, but are still extensively cited by NSA defenders today, so they cannot simply be disregarded. In this case, the Justices argued that technological advances had rendered them obsolete. Cellphone metadata implicates privacy much more strongly than landline metadata, because cellphone metadata goes with the person rather than with the location, and discloses much more by itself about the person’s activities. Phone metadata is therefore now much more analogous to GPS data, the collection of which, under US v. Jones, now requires a warrant. This is a challenging argument for lower federal courts to make. The value of a decision like this one, taken by a state supreme court on the basis of the state constitution, is that it reinforces the argument that the US Supreme Court should take up a case that would enable it decisively to overrule these immensely damaging precedents.
The implications of this case are considerable. For starters, it would appear to render presumptively unlawful the use of Stingray devices by Massachusetts law enforcement, because those devices inherently seize cellphone location data from a phone company without applying for a warrant. For seconds, it strengthens the perception that Article XIV is indeed a stronger, practical protection for people’s rights than the much-abused Fourth Amendment is. And for dessert, it encourages surveillance activists across the country to focus on state constitutions and state legislatures as part of the effort to roll back the surveillance state.