Mass. High Court Weighs If Warrants Are Needed For Cell Records

The state's highest court heard arguments Thursday in a case involving the right to privacy in the digital age.

The outcome could determine whether state law enforcement needs a warrant to retroactively track where a cellphone has been.

At issue is location information that’s automatically generated whenever someone makes or ends a cellphone call, as records of which cell towers handled the call can be an indicator of the phone user’s location at the time.

The case in point involves a 2004 Dorchester murder. Investigators had sought a judicial order for location records of a phone in use by a suspect over a two-week period. And although there was no evidentiary hearing, the judge in the case agreed that the records met the fairly low legal standard of "relevant and material" to the case.

The cell service provider handed over the records, but a Superior Court judge later suppressed that evidence. That judge said there had not been a determination of the higher standard of "probable cause" that the suspect committed a crime, and so there was an unconstitutional warrantless search.

“The issue is whether the commonwealth can warrantlessly obtain location information about everyone’s cellphone," said Massachusetts ACLU legal director Matthew Segal.

Segal argued before the Supreme Judicial Court that because cellphones travel everywhere with their users, the location records provide an all-too-intimate portrait of their lives.

“We believe that that’s information that’s very private, very intrusive and should require a warrant supported by probable cause," he said.

But prosecutors say that established law allows third parties, such as cellphone providers, to turn over location records without a warrant. And Jake Wark, spokesman for the Suffolk County district attorney, says cellphone records are less exacting and intrusive than, say, placing a GPS tracker on a car, which does require a warrant.

“Cell site location information is very good at telling you where someone is not," Wark said. "It’s fantastic for disproving an alibi. It’s not so good at telling you exactly where someone is."

And Wark argues that the issue is moot, because cell service providers now routinely require a warrant before releasing any customer records in Massachusetts.

But according to one advocacy group, the Electronic Frontier Foundation, that’s not the case in general. The National Security Agency, for instance, reportedly relies on the "relevant and material" standard to justify its collection of electronic data.

Activists hope that this case and similar ones around the country will build a new body of law that’s more protective of privacy.

Prosecutors in this particular murder case just want the court to allow them to bring the evidence to the jury.