Court: Police must get warrant for detailed phone location data

A divided Supreme Judicial Court ruled Tuesday that warrants are required in cases where law enforcement seek two weeks or more of cell site location information, or CSLI, from a suspect’s phone.

The ruling stems from a Dorchester murder case in which State Police troopers investigating the death of 26 year-old Julaine Jules, whose body was recovered from the Charles River in September 2004, obtained the cell phone records for Shabazz Augustine, who had been her boyfriend.

The murder is alleged to have happened at Augustine’s former apartment on Sydney Street. Augustine, now 36, was arrested and charged in the crime in June 2011.

The decision was hailed as a victory by Suffolk County District Attorney Daniel F. Conley, who said the earlier order would have kept a jury from hearing key evidence in Augustine's trial.

"Investigators followed all the appropriate steps in obtaining that evidence," Conley said. "Ten years before this decision, they presented a judge with a detailed affidavit that would have supported the search warrant that the high court today says is necessary."

“Going forward, this is a pretty significant protection of privacy for everyone in Massachusetts,” said American Civil Liberties Union of Massachusetts Legal Director Matt Segal. He said the decision is significant because law enforcement has argued that information kept by a third party, such as a cell provider, should not require a warrant.

Segal said the case will go back to the lower court judge ahead of Augustine’s trial.

Segal said the police obtained a court order to receive the cell phone data, but the order required a lesser standard than the “probable cause” needed for a warrant.

The SJC likened the use of cell phone location data to Global Positioning Satellite data, which the court had previously ruled requires a warrant if the GPS data is used for a lengthy period of time, Segal said.

“We recognize this difference between GPS vehicle location tracking and historical CSLI,” read the majority opinion written by Justice Margot Botsford. “Nonetheless, we also recognize that in terms of the constitutional question raised, GPS data and historical CSLI are linked at a fundamental level: they both implicate the same constitutionally protected interest - a person's reasonable expectation of privacy - in the same manner - by tracking the person's movements.”

The dissent, written by Justice Ralph Gants, who was joined by Justice Robert Cordy, notes the distinction between “call CSLI” where locations are recorded during phone calls, and “registration CSLI” where a cell phone’s location is provided every seven seconds while it is on.

Gants argued that the cell phone data obtained in Augustine’s case was less intrusive than other data that can be obtained without a warrant.

“While we have long accepted that the Commonwealth may obtain cellular telephone toll records without a search warrant supported by probable cause, it bears noting that the information revealed by those records intrudes deeply on personal privacy,” wrote Gants.

Gants calculated that cell phone users spoke on the phone in 2012 only 1.4 percent of the day, buttressing his argument that the location data obtained during a phone’s use is less intrusive than other evidence that can be obtained with a court order.

“But this patchwork of location points, while intrusive of privacy, is less intrusive than the patchwork of personal affiliations that can be learned from traditional telephone toll records. I also recognize that the degree of intrusion on privacy will depend on the number of calls the user makes and receives,” Gants wrote. “But this is also true about traditional telephone records; the more telephone calls a person makes and receives, the more will be revealed regarding the persons the individual speaks with and the frequency of those calls.”

The ACLU is backing a bill (S 796 / H 1684) sponsored by Sen. Karen Spilka, an Ashland Democrat, and former Rep. Marty Walz, who is now head of the state’s Planned Parenthood organization, that would add more warrant requirements.

“Today’s ruling in Massachusetts immediately changes the law with respect to location tracking, but it only explicitly deals with cell phones, and it doesn’t specify whether or not police need a warrant to track someone’s cell location for 13 days instead of 14. That’s still up to the legislature,” the ACLU wrote on its blog. “The Electronic Privacy Act, currently before the Joint Judiciary Committee, would require a warrant for all cell phone location tracking—no matter how many days police want to track you, or using what kind of technology.”

Segal said that the way cell phone technology has progressed, it would now be “very easy for a cell phone company to collect basically a continuous stream of information about your location.” Segal also said the Legislature should develop new laws to incorporate the court’s ruling.

Conley said that the decision is "largely moot for most Suffolk County cases, since investigators here have been using search warrants to obtain that information for years before today's decision."

"We've been ahead of the curve for some time now," he said.

Reporter editor Bill Forry contributed to this report.