Friday, April 6, 2012

Massachusetts court finds warrant necessary for CSLI

A Massachusetts appellate court has joined the list of courts requiring a search warrant for cell site location information. Commonwealth v. Pitt, 2012 Mass. Super. LEXIS 39. (Please forgive the block quotes, but the court's language, though familiar, is worth reading.)
[T]he Fourth Amendment's warrant requirement cannot protect citizens' privacy if a court determines whether a warrant is required only after the search has occurred, and the incursion into a citizen's private affairs has already taken place. The Fourth Amendment would offer but hollow protection indeed if government agents were free to embark on random forays into a citizen's historical location at will, constrained only by the possibility that the fruits of their endeavor would be suppressed if they happened to verge into a citizen's home or other "private" location. ... 
A ping off a cell phone tower in the vicinity of the meeting house of the local chapter of the NAACP, the Right to Life Foundation, the Gay and Lesbian Advocates and Defenders, or Fathers4Justice, at the times those organizations hold meetings, could suggest participation. Repeated pings, obtained from several uses of CSLI, would strongly indicate membership. There is no principled basis in current Fourth Amendment law to conclude that no warrant is required for a single use of CSLI, but that a warrant would be required as repeated use of that technology becomes more invasive. Accepting the Commonwealth's argument that no warrant is required to access CSLI because there is no expectation of privacy in that information would permit repeated examinations of a range of location data without a warrant just as readily as it would permit the single discrete examination of that data here. ... 
Consistent with this statement of social policy, and with the authorities discussed above, this court concludes that a warrant was required before the FBI, acting on behalf of the Commonwealth accessed the defendant's CSLI, and that the failure to secure one contravenes the Fourth Amendment in a manner that requires suppression.

The court began the discussion on CSLI by quoting some text from Smith v. Maryland that I had not noticed before - "All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills." Perhaps the argument is out of date today because of understandings with regard to basic understandings on this issue, but my cell phone bills have never included a list of phone calls I have made. Could that lead a reasonable person to think that phone companies do not keep a record of that information?


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