Lawyers and technology competency: Louisiana weighs in
New York court on privacy expectations in social media accounts

Massachusetts weighs in on law enforcement access to real-time geolocation data

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Now that most Americans own smartphones, privacy issues abound. Our devices collect a vast array of information about us. Some of this data is stored on our devices and some is shared with our service providers. As a result, one issue that has cropped up repeatedly is when and how law enforcement may access cell phone data.

One particular type of data often sought by law enforcement is geolocation information. Our mobile devices provide both real-time and historical data regarding our location at any given time. Obviously this information has the potential to be incredibly valuable in the context of a criminal investigation, so it’s not surprising that law enforcement often seeks to obtain it.

The United States Supreme Court addressed the issue of whether law enforcement may obtain historical cell phone records last year. In Carpenter v. U.S., 138 Sup. Ct. 2206 (2018), the Court held that a warrant was required in order to access historical cell phone geolocation data.

The law is not yet settled regarding access to real-time cell phone data, however, so I read with interest a Massachusetts Supreme Court opinion that was handed down last week that addressed this very issue. In Commonwealth v. Almonor, No. SJC-12499, the Court considered whether “whether police action
causing an individual’s cell phone to reveal its real-time location constitutes a search in the constitutional sense.”

In this case, the defendant was identified as a murder suspect, and one of the witnesses to the crime provided police with the defendant’s name and cell phone number. After obtaining other evidence, the investigating officer contacted the defendant’s cell phone provider and requested several pieces of information, including the precise, real-time location of the defendant’s cell phone.

Eventually the provider “pinged” the defendant’s cell phone and provided law enforcement with the exact location of the defendant’s cell phone. Officers then drove to that location, obtained consent to enter the home, and arrested the defendant therein. The defendant moved to suppress the arrest on the grounds that the ping of the defendant's cell phone was a search under the Fourth Amendment and Article 14 of the Massachusetts Constitution.

In reaching its decision on the issue, the Court acknowledged that a delicate balance was required when considering the enhanced surveillance capabilities that technological advances provided law enforcement. The Court explained that it is important to carefully “guard against the…power of technology to shrink the realm of guaranteed privacy…(and) that privacy rights cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adopted.”

The Court noted that when police direct a service provider to “ping” a cell phone to determine its real-time location, it raises “distinct privacy concerns,” especially since said data would not be collected in the absence of law enforcement’s request. Notably, the Court determined that there is a reasonable expectation of privacy in this situation since cell phones are such an indispensable part of our lives and provide an incredible amount of information about their owners. The Court explained that “society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data.”

As such, the Court concluded that it constitutes a search when law enforcement obtains real-time location data from a cell phone provider, since doing so intrudes on the cell phone owner’s reasonable expectation of privacy. The Court explained that to conclude otherwise would “shrink the realm of guaranteed privacy…under art.14 and leave legitimate privacy rights at the…mercy of advancing technology."

Although the Court held that the exigent circumstances exception applied to the facts of this case, the overall holding is a step in the right direction.

Technology is pervasive in our lives and offers so many benefits. But when used by law enforcement, can sometimes be abused in new and increasingly invasive ways. Decisions like this one provide much-needed analysis and insight into the application of constitutional protections in the face of rapidly evolving technological innovation.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.