Mass. trial court finds obtaining one day of CSLI without cause to violate the Mass. Constitution

In Commonwealth v. Wyatt, 30 Mass. L. Rep. 270 (Mass. Sup. Ct. 2012), the Superior Court of Massachusetts held that obtaining cell site location information (CSLI) without a showing of cause (the court did not specify if probable cause was a requirement) was a violation of the Massachusetts Constitution. As a result of this finding, the defendants' motions to suppress were granted.

As part of a murder investigation, law enforcement acquired nine 2703(d) orders covering five different cell phone companies and eighteen phone numbers seeking subscriber information and call records for a near two-month period and CSLI for one day. Officers later admitted they did not have probable cause to acquire this information. The four defendants filed a motion to suppress their historical CSLI .

The court began by discussing the similarities of cell phones and a GPS device, noting that "CSLI enables a cellular telephone to be treated as a de facto Global Positioning System (GPS) tracking device." As such, they conducted an evaluation of a state high court opinion in Connolly (holding that installation of a GPS device on a vehicle is a seizure) and the Supreme Court's opinion in Jones.

Next, the court applied the expectation of privacy test to the use of CSLI. Because "[i]t is unlikely that the average cellular telephone user knows that when he or she makes or receives a call or a text message, the service provider creates and maintains a record of the cellular telephone’s location," the defendants had a subjective expectation of privacy in the cell records.

As to an objective expectation of privacy, the court held:

Allowing the government to track our movements without evidence that the person whose CSLI is sought engaged in criminal activity compromises what it means to be a citizen of the United States of America free from arbitrary surveillance.... 

Allowing the government to track a citizen’s movement through CSLI, without requiring the government to show probable cause or even reasonable suspicion that the target is engaged in criminal activity is contrary to the very freedom we hold dear.

Thus, the defendant's motion to suppress their cell site location information was granted.

Cybercrime Review blogger Justin Webb contributed to this post.