Massachusetts Cops Need Warrant for Tower Data

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By Lance J. Rogers

Sept. 30 — Police in Massachusetts need a warrant whenever they ask a mobile phone service provider to give up more than six hours of cell tower data that can be used to track a mobile phone's past movements, the Massachusetts Supreme Judicial Court ruled Sept. 28 (Commonwealth v. Estabrook, 2015 BL 311255, Mass., No. SJC-11833, 9/28/15).

The decision sets up a bright-line rule in Massachusetts and adds to a divide in the state and federal courts, which has U.S. Supreme Court watchers predicting that this will be one of the next big Fourth Amendment issues that the justices will tackle.

Next Stop, SCOTUS?

Citing the federal circuit split on the question, John P. Elwood, a partner at Vinson & Elkins LLP in Washington, told Bloomberg BNA in a video interview that he thinks it's “inevitable” that the issue will land in the court “either this term or next.”

According to Elwood, the Fifth and Eleventh circuits have reasoned that no search warrant is required under the Fourth Amendment's “third-party doctrine,” which deems it unreasonable for individuals to expect that information they voluntarily expose to others will remain private.

On the other side of the coin, he noted, “the Fourth Circuit has held that you do need a warrant.”

The government on Sept. 17 petitioned the Fourth Circuit to rehear the matter en banc.

‘Digital Age Evidence'

Looking at the high court's recent rulings in both the mobile phone privacy case and the GPS tracking case, Elwood predicted that the justices might not fall back on a simplistic third-party doctrine analysis in deciding the cell tower issue.

The decisions in Riley v. California, 2014 BL 175779 (U.S. 2014) (95 CrL 445, 7/2/14)(2014 WRLN 16, 9/1/14)(2014 CELULR 15, 8/1/14)(15 CTLR 337, 7/4/14)(14 DDEE 318, 7/3/14)(19 ECLR 842, 7/2/14)(2014 HRDSN, 7/1/14)(2014 TLN 6, 7/1/14)(123 Privacy Law Watch, 6/26/14)(123 DER A-29, 6/26/14)(83 U.S.L.W. 17, 7/1/14), and United States v. Jones, 2012 BL 14420 (U.S. 2012) (90 CrL 537, 1/25/12)(2012 WRLN 32, 3/1/12)(12 EXER 78, 2/6/12)(13 CTLR 75, 2/3/12)(12 DDEE 40, 2/2/12)(80 U.S.L.W. 964, 1/24/12)(2012 TLN 12, 2/1/12)(11 PVLR 185, 1/30/12)(17 ECLR 155, 1/25/12)(14 Antitrust & Trade Regulation Daily, 1/24/12)(14 DER A-18, 1/24/12), he said, “suggest that the court really is primed to apply traditional Fourth Amendment doctrine in a different way when it comes to digital age evidence.”

petition for certiorari to review the Eleventh Circuit decision was filed with the U.S. Supreme July 29.

The collection of location information is more pervasive than many mobile phone customers might think. Verizon Communications reports it received approximately 21,800 demands for location data in the first half of 2015.

AT&T in its most recent annual report indicated that it received 37,973 location demands from January to June 2015.

Six-Hour Cutoff

The Massachusetts court ruled in 2014 that officers generally need a search warrant to access historical tower locationdata in the possession of mobile phone service providers (97 CrL 599, 8/12/15).

In a footnote, however, the court left open the possibility that it might be reasonable to assume that a search warrant might not be required if the request for historical data covered “a period of six hours or less.”

Prosecutors investigating Jason Estabrook for murder, armed home invasion and attempted armed robbery claimed that they fell within this six-hour exemption because, although they requested over two weeks of cellular site location information (CSLI), they only intended to use six hours of the material.

In an opinion by Justice Margot Botsford, the court rejected the commonwealth's claim that it could take advantage of the six-hour exception, ruling that “in terms of reasonable expectation of privacy, the salient consideration is the length of time for which a person's CSLI is requested, not the time covered by the person's CSLI that the Commonwealth ultimately seeks to use as evidence at trial.”

Attenuated Taint

At the same time, the court clarified that the six-hour time frame is now “a bright-line” demarcation.

“We now hold that, assuming compliance with the requirements of 18 U.S.C. § 2703, the Commonwealth may obtain historical CSLI for a period of six hours or less relating to an identified person’s cellular telephone from the cellular service provider without obtaining a search warrant, because such a request does not violate the person’s constitutionally protected expectation of privacy.”

That ruling, however, didn't help Estabrook because the court went on to hold that the statements that Estabrook and his alleged confederate made were not the fruits of the illegal search of the CSLI.

According to the court, the statements were not made in response to being confronted with the tainted CSLI evidence but were instead derived from information the commonwealth obtained independently.

George E. Murphy Jr., Cambridge, Mass., argued on behalf of Estabrook. Daniel Beck, Cambridge, argued on behalf of Estabrook's alleged confederate, Adam Bradley. Jamie Michael Charles, of the Middlesex County District Attorney's Office, argued for the commonwealth.

STATE LEGISLATIVE ACTION

At least six states have legislated privacy protections for historical CSLI: ColoradoMaineMinnesotaMontana,Tennessee and Utah.

SOURCE DOCUMENTS

Oral Argument

Amicus Brief by Harvard Cyberlaw Clinic

ACLU Map of U.S. Showing Geographic Divide

State and Federal Split

Courts sharing the Massachusetts justices' view that a warrant is required to acquire location information include:United States v. Graham, 796 F.3d 332 (4th Cir. 2015) (97 CrL 599, 8/12/15); In re United States, 849 F. Supp. 2d 526 (D. Md. 2011); In re United States, 809 F. Supp. 2d 113 (E.D.N.Y. 2011); Tracey v. State, 152 So. 3d 504 (Fla. 2014) (96 CrL 105, 10/22/14); and State v. Earls, 70 A.3d 630 (N.J. 2013) (93 CrL 552, 7/24/13).

Courts that say no warrant is necessary include: United States v. Davis, 754 F.3d 1205 (11th Cir. 2014) (95 CrL 382, 6/18/14); In re Application of United States for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013); and In re Application of United States of America for Order Directing Provider of Electronic Communication Service to Disclose Records to Government, 620 F.3d 304 (3d Cir. 2010).