Technology – especially internet and smart phone technology – is moving at light speed. The law is trying to catch up to these changes, and a decision yesterday by the Massachusetts Supreme Judicial Court (SJC) made more headway in that race.

The decision, Commonwealth v. Augustine, deals with whether or not police or law enforcement investigators have to first secure a search warrant before they can be given someone’s cell phone records from a wireless carrier. Smart phones are essentially a homing device, due to the fact that the cellular carrier’s network constantly tracks the phone’s location. Almost all smart phones these days – millions of them – contain GPS chips that determine the phone’s location, down to a few feet. Even without a GPS chip, the cellular network can produce information about the phone’s geographic location through cell tower tracking. This type of prosecutorial evidence is increasingly important in a variety of cases, such as Massachusetts rape charges, Massachusetts drug offense charges, Massachusetts assault & battery charges, and Massachusetts larceny and robbery charges.

The SJC’s ruling stems from the 2004 murder of a Malden woman named Julaine Jules. Police suspected her former boyfriend, Shabazz Augustine, and obtained Augustine’s cellphone records from Sprint Nextel Corp., his wireless carrier, to ascertain his whereabouts at the time of the killing. Augustine was arrested in 2011 and charged with Jules’ murder; he is awaiting trial.

Back in 2004, the subject of data privacy was nowhere near as front and center as it is today. In Ms. Jule’s murder investigation, police relied on a 1986 federal law, the Stored Communications Act, that allowed police to obtain phone records without a warrant by persuading a judge that the records may be “relevant” to an ongoing investigation. For several years, this has been a common practice by local, state, and federal law enforcement agencies in their attempts to gain access to cellphone data. How frequent has this practice been? A 2012 congressional report uncovered that the nation’s cell phone carriers gave authorities in excess of 1.3 million cellphone records in just 2011.

The issue at the heart of the Augustine case was whether police should have gone that extra length to get a search warrant. Legally, that’s a more difficult standard for police to meet, because a judge has to be persuaded that the person whose cell phone records are sought, has likely committed a crime (legally speaking, this is called a “probable cause” standard.) Augustine’s lawyers claimed that even if the practice of obtaining records without a warrant was legal under federal law, it violated Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures. Prosecutors argued that the records they sought were not Augustine’s, but were instead the property of his cellphone carrier, and that resultantly he could not have any reasonable expectation of privacy over those records. In its ruling yesterday, the SJC produced a clear definition of the privacy of phone records, and providing prosecutors direction in how to use those records in their case against Augustine. In the 5-2 majority opinion, written by Justice Margot Botsford, the court ruled that “Tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy. In holding here that the Commonwealth generally must obtain a warrant before acquiring a person’s historical [cellphone location] records, this opinion clearly announces a new rule.”

The two dissenting justices, Ralph Gants and Robert Cordy, wrote that the SJC has imposed unreasonable restrictions on police investigators. Gants pointed out that police did not use Augustine’s cellphone records to track his ‘every move’ but instead only records that indicated when he made or received calls.

Notwithstanding, the ruling stands, and it scores a victory for digital privacy advocates and the criminal defense bar. As a Boston, Massachusetts criminal defense attorney, I feel that whether or not it is the “right” or wisest, ruling, time will have to tell.

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