New Protections Needed for Smartphones, Third-Party Doctrine for Cellphone Tracking, Lawyers Say

A warrantless cellphone tracking case heard by the Massachusetts Supreme Judicial Court (SJC) last week could have repercussions for future legislation on privacy in the state, said privacy lawyers and stakeholders in interviews. The amicus briefs and oral argument raised questions on how the third-party doctrine has allowed government entities to get access to more personal information and how technologies have changed over the years. If the SJC ruled to restrict warrantless cellphone tracking, it would be the second state to interpret the Fourth Amendment to enhance privacy protections, said Jessie Rossman, ACLU Massachusetts staff attorney.

In 2004, the Massachusetts Commonwealth obtained 14 days of cell site location information for Shabazz Augustine, a criminal defendant, but the case for the warrantless cellphone tracking was not brought to court until 2011, said Rossman. ACLU Massachusetts represented Augustine regarding the motion to suppress the cell site location information in the criminal investigation, said Rossman. “When the government asks for your cell site information, they need to go to a judge and ask for a probable cause warrant, which did not happen here.” Under the Secure Communications Act, the commonwealth obtained a 2703(d) order to show the warrant related to an ongoing investigation, which sets a “lower bar than probable cause,” said Rossman.

Cell site location information needs to be protected because it reveals sensitive information on a person’s movements, affiliations and associations, Hanni Fakhoury, Electronic Frontier Foundation staff attorney, told us. This issue is having repercussions across the country, with Maine and Montana recently passing geolocation tracking legislation (CD July 15 p7), said Fakhoury. EFF filed an amicus brief in response to the SJC’s request for outside opinions, and its brief focused on how cellphone communications have changed since the case was opened in 2004, he said. “The majority of Americans have a smartphone, and the overwhelming majority of Americans have a cellphone,” said Fakhoury. “As there is a greater demand for more cellphones and Internet-connected phones, providers are going to have to create more towers to enable people to connect, which is going to make the technology more precise over time.”

Legal precedents need to move forward to give citizens more consumer protections, said Kit Walsh, the clinical instruction fellow at Cyberlaw Clinic of the Berkman Center who wrote the EFF brief. In June, the SJC decided in Commonwealth v. Rousseau that government is not allowed to track location information from a GPS. “In this case, the question is on whether the justices will be consistent with Rosseau or they could draw the line on where location privacy lies by distinguishing this case on the grounds that it was only two weeks,” said Walsh. The EFF brief also questioned the definition of an invasive search, he said. “At the time when the policy authorized this search, there was no way to know how detailed the information would be when it was ultimately collected,” he said. “When you determine whether a search is going to be too invasive or not, you need to look at what may be revealed by that kind of search."

The third-party doctrine is an outdated way for the government to obtain personal information, said litigator Kevin Prussia of WilmerHale. He wrote an amicus brief for the Massachusetts Association of Criminal Defense Lawyers to explain how doctrine can become an invasion of privacy in the digital age. “The doctrine can become problematic given the amount of information people are turning over to a third party through email, storing data or a cloud or using social networks,” said Prussia. “There is a lot of information out there possessed by someone else.” In Augustine, the government requested cell site information from Sprint under the Stored Communications Act, and asked for his cell site location information to find where he was during the timeline of events, said Walsh. “As we become more automated in everything we do and everything is in the digital state, it only increases the amount of information the government has access to,” he said. “The Fourth Amendment doctrine is behind the times in a constant stage of playing catch up."

Constitutional principles can take years to catch up to technology, said Berin Szoka, TechFreedom president. “It’s far from clear the court will be able to reach the question of whether cell phone data today is so precise as to require a warrant because the Massachusetts case is about cell phone data in 2004,” he told us. “The Commonwealth may well prevail in its argument that the trial court erred by resolving this key question from the bench.” The privacy decisions may need to be solved legislatively, as U.S. Supreme Court Justice Samuel Alito argued in U.S. v. Jones, where Alito noted “how ill-suited courts are to resolve constitutional questions that hinge on changing technologies,” said Szoka. A Fourth Amendment loss could “jolt lawmakers into action in Massachusetts,” he said.

The American Legislative Exchange Council introduced model legislation on cellphone tracking at its July meeting (CD July 15 p7), said John Stephenson, the council’s communications and technology task force director. ALEC’s legislation focuses on warrant for content requirements, warrant for geolocation information and a warrant requirement for conducting a physical search of a mobile device, he said. “People are concerned about their privacy online and they are looking for thoughtful policy that is workable and balances the interests of law enforcement and citizens.” State legislatures are “stepping up” with legislation to look at cellphone tracking, said Stephenson. “This is something that can’t be made up in the courts, because the court’s job is to interpret the law.”