By John R. Ellement and Danny McDonald, April 23, 2019.
The state’s highest court for the first time on Tuesday extended the right to privacy to encompass cellphone location data, but preserved the right of law enforcement to “ping” cellphones in emergencies, such as a search for an armed murder suspect.
In a unanimous decision, the Supreme Judicial Court held that state constitutional protections against unwarranted and excessive government intrusion into personal lives must keep pace with technological innovations.
Cellphones are “almost a feature of human anatomy,” with tracking technology that police can “ping” to learn a person’s current location without their knowledge, Justice Scott L. Kafker wrote for the court. “This extraordinarily powerful surveillance tool finds no analog in the traditional surveillance methods of law enforcement and therefore grants police unfettered access ‘to a category of information otherwise unknowable.’ ”
The ruling prohibits police from unilaterally demanding that phone companies turn over cell tower location information. In most circumstances, police will now need a search warrant to obtain the information, the court ruled.
“The power of such unauthorized surveillance . . . is too susceptible to being exercised arbitrarily by law enforcement — precisely the type of governmental conduct against which the framers sought to guard,’’ Kafker wrote.
Matthew R. Segal, the legal director for the American Civil Liberties Union Foundation of Massachusetts, hailed the ruling as a “truly important decision.”
“It reaches new territory because it’s holding that a single ping of a cellphone is a search that would normally require a warrant,” he said.
The practices of law enforcement agencies in the state, Segal said, “are a bit opaque.”
“Only they know how often they have been warrantlessly manipulating electronic devices to learn information,” he said.
The warrant requirement, Segal said, can be “satisfied by good police work.” He did not think the decision would be onerous for law enforcement.
In its decision, the SJC ruled law enforcement can still require cellphone companies to ping phones without a warrant if there are “exigent circumstances,” such as danger to the public or a threat that the suspect will flee or destroy evidence.
Karen Pita Loor, a Boston University law professor, also applauded the ruling, saying it “places limits on a police officer’s ability essentially to obtain data without probable cause.”
She said the ruling was “an expansion” of a Supreme Court decision from last year that found that the government generally needs a warrant to collect troves of location data about the customers of cellphone companies. The Fourth Amendment, she said, offers protections from government intrusion…
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