Can a state court overturn a decision by the U.S. Supreme Court? No, not really, but Massachusetts’ highest court took its best shot last week [Feb. 18] in an important decision giving cell phone users in the Bay State more privacy protections than recognized under Supreme Court precedents. Privacy advocates can hope that the Massachusetts ruling helps prompt the justices to re-interpret past decisions to catch up with the realities of privacy-invasive 21st century technology.
The 5-2 ruling by the Supreme Judicial Court of Massachusetts in Commonwealth v. Augustine requires police to get a search warrant before getting a cell phone provider to turn over customers’ call records. The court’s majority based the decision not on the Fourth Amendment but on a broader reading of the comparable search provision in Massachusetts’ constitution.
Massachusetts state police obtained cell phone records of Shabazz Augustine after he came under suspicion in the August 2004 death of his former girlfriend, Juliane Jules. The Federal Stored Communications Act, enacted in 1986 as part of the Electronic Communications Privacy Act, requires an electronic communications provider to turn over a customer’s records to the government if the government obtains a court order for the records.
The federal law requires only that the government present to a court “specific and articulable facts showing that there are reasonable grounds to believe that the ... records … are relevant and material to an ongoing criminal investigation . . .” That standard is far short of the “probable cause” requirement for search warrants under the Fourth Amendment.
The cell phone records, obtained after a court order issued under that standard, showed Augustine’s general locations in the Boston area during the two-week period after Jules’ disappearance. That information, combined with other evidence, was enough to indict him for murder, seven years later. But a trial-level judge excluded the cell-phone evidence because police had failed to obtain a search warrant for the information.
On appeal, the state relied on a pair of U.S. Supreme Court decisions from the 1970s that allow the government to obtain “business records” from a bank (United States v. Miller, 1976) or an old-style phone company (Smith v. Maryland, 1979). The Supreme Court reasoned — in a true legal fiction — that the bank or phone company customer had voluntarily turned over the information to a third party and thus that no “search” was involved.
In Smith, Maryland police used a pen register — a mechanical device that records the numbers called from a specific phone — to link the defendant to drug-dealing. On the surface, Smith seems to be a controlling precedent. Indeed, as the Massachusetts court conceded, a majority of the federal courts to rule on the issue have relied on Smith in concluding that police can obtain cell-phone records without meeting the Fourth Amendment standard for searches.
The majority of the Massachusetts court, however, found “an enormous difference” between the call logs for a land-line phone and those for a mobile cell phone. A call log for a land line “may indicate whether the subscriber is at home, but no more,” Justice Margot Bostsford wrote for the majority. But for a cellular telephone user, records showing cell site locations “may yield a treasure trove of very detailed and extensive information about the individual’s ‘comings and goings’ in both public and private places.”
Botsford acknowledged that Supreme Court precedents allow the government to track individuals in public areas. But cell-phone technology, she continued, shows a caller’s location whether in a public or private location. “We cannot ignore,” she concluded, “the probability that, as [cell site location information] becomes more precise, cellular telephone users will be tracked in constitutionally protected areas.”
The ruling allows the state to go back to court to try to show that it had adequate information to obtain a search warrant in the first place. But the dissenting justices warned that the decision “will significantly diminish the ability of law enforcement to solve and to prove crimes, which so often depends on proving the whereabouts of a suspect at the time of the crime through his or her cellular telephone location.”
By grounding its decision on the state constitution, the Massachusetts court insulated it from reversal by the U.S. Supreme Court. But this issue will reach The Nine eventually.
The justices were attentive to privacy issues in their first brush with 21st-century tracking technology two years ago. All nine justices agreed in United States v. Jones (2012) that tracking a motorist with a global positioning system (GPS) attached to his vehicle amounts to a search, subject to Fourth Amendment requirements. But they significantly divided into two camps for their reasoning.
The majority, led by Justice Antonin Scalia, viewed the installation of the GPS device as a trespass, amounting to a search. But four other justices — three liberals plus conservative Samuel A. Alito Jr. — analyzed the case instead in terms of an individual’s reasonable expectation of privacy. The month-long tracking of the defendant in the case, Alito concluded, went too far.
As the division on the Massachusetts court indicates, the different approaches could yield a different result regarding cell phone records. A cramped view of the old third-party doctrine — no search — favors the government. In the 21st century, however, modern technology allows the government to go too far unless privacy doctrine is itself updated to the present day.
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