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Mass. SJC rules warrants needed for data searches

Edward Snowden’s leak of NSA documents raised similar privacy questions as the ones in the case before the SJC.

Associated Press File 2013

Edward Snowden’s leak of NSA documents raised similar privacy questions as the ones in the case before the SJC.

With the National Security Agency under siege for collecting phone data on millions of Americans, Massachusetts’ highest court said Tuesday that a similar practice is not allowed in the state.

The Supreme Judicial Court ruled, 5 to 2, that the Massachusetts Constitution prohibits law enforcement investigators from gathering cellphone records that track individuals’ movements without first obtaining a search warrant from a state judge. The ruling makes Massachusetts the latest of several states to set stricter limits on government access to citizens’ phone records.

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Matthew Segal, legal director of the American Civil Liberties Union of Massachusetts, said the ruling is “an enormous victory for everybody in Massachusetts who cares about privacy. It protects people in Massachusetts and gives them rights that Massachusetts law enforcement officers have to respect.”

In their dissent, however, two judges said the ruling would impose an undue burden on police.

Although the ruling has no bearing on federal surveillance, the issues at stake are similar to privacy questions raised by the NSA’s routine snooping of electronic records of US citizens. Last year, former agency contractor Edward Snowden leaked documents showing that among the mounds of data the NSA collects on citizens are millions of phone records.

Federal judges have scrutinized the NSA’s phone data collection practices, with mixed results. In December, Judge Richard Leon of the US District Court for the District of Columbia ruled that the program is probably unconstitutional and issued an injunction against the practice. Leon suspended his order, to allow the federal government to appeal. But also in December, federal Judge William Pauley in New York dismissed a similar lawsuit, finding that the program is legal.

Segal said that Massachusetts and other states are beginning to define privacy rights in the digital era in the absence of an explicit directive from either Congress or federal courts.

“It’s an important part of the discussion we’re having right now in the country about surveillance,” Segal said.

Massachusetts joins New Jersey as one of two states where courts have ruled that phone record searches require a warrant. Maine and Montana have passed legislation to establish the same policy. And before Tuesday’s decision, a Massachusetts legislator, Senator Karen E. Spilka, Democrat of Ashland, filed similar legislation.

The Massachusetts case stems from the 2004 slaying of a Malden woman, Julaine Jules. Suspecting her former boyfriend, Shabazz Augustine, investigators obtained his cellphone records from his wireless carrier, Sprint Nextel Corp., to determine his whereabouts around the time of the killing. Arrested in 2011 and charged with her murder, Augustine is awaiting trial.

In 2004, the issue of data privacy was in its infancy. Investigators in the Jules case relied on a federal law, the 1986 Stored Communications Act, that allowed police to get phone records by showing a judge that the information may be relevant to an investigation.

It has been a common practice by local, state, and federal agencies across the country to use the federal law to get access to cellphone data during investigations. According to a 2012 congressional report, the nation’s carriers gave authorities some 1.3 million cellphone records in 2011.

Even Massachusetts’ highest court noted Tuesday that investigators did not have other guidance from state or federal judges about whether a search warrant was necessary to ensure the search of phone records was legal under the state Constitution.

The issue at the heart of the case is whether investigators should have gone that extra step for a search warrant. That’s a tougher standard to meet, because a judge must be persuaded that the person being investigated has probably committed a crime.

Augustine’s lawyers argued that even if the practice is legal under federal law, it violates Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures.

In 2013, a Suffolk Superior Court judge ruled that because cellphone records can reveal a person’s movements and activities in great detail, the records were inadmissible without a search warrant.

Cellphones are a kind of homing device because the cellular network must constantly track the phone’s approximate location. Millions of phones have GPS chips that can determine the phone’s location to within a few feet. Even without GPS, the network can provide information about the phone’s location by tracking which towers its signal is using.

State authorities appealed the judge’s ruling, arguing that the records in question were not Augustine’s, but rather the property of his cellphone company and that he should not have any expectation of privacy over them. Separately, prosecutors asserted that the affidavit they used to obtain the records under federal law had enough evidence to get a search warrant from a state judge, as well.

In its ruling Tuesday, the SJC clarified the issues, providing both a clear definition of the privacy of phone records in the digital age and affording prosecutors a road map to using those records in their case against Augustine.

“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,” said the opinion, written by Justice Margot Botsford. “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.”

Dissenting justices Ralph Gants and Robert Cordy questioned whether the SJC has imposed too much restriction on law enforcement. Gants noted that investigators did not use Augustine’s cellphone records to track his every move but rather those that noted when he made or received calls.

Gants said that such limited location tracking shouldn’t require a warrant. “If the search warrant requirement is given inappropriate breadth, it will significantly diminish the ability of law enforcement to solve and to prove crimes, which so often depends on proving the whereabouts of a suspect at the time of the crime through his or her cellular telephone location,” Gants wrote.

Andrew McCarthy, a former federal prosecutor and now a policy fellow at the conservative National Review Institute, questioned whether such important issues about the privacy of phone records should be left for judges to decide.

“In general, I do not like courts legislating new rules, and I think this is an example of this,” McCarthy said. “I think that’s the place of a legislature.”

The SJC ruling does provide prosecutors with an important boost in their case against Augustine. The SJC ordered the lower court to consider whether the affidavit prosecutors assembled in 2004 was strong enough to secure a search warrant for Augustine’s records. If so, the records could still be used at his trial.

“We expect to prove that the affidavit submitted in 2004 would just as easily have supported a search warrant,” said Jake Wark, a spokesman for the Suffolk district attorney’s office.

Suffolk prosecutors adopted a policy several years ago to routinely request search warrants for phone records. It’s unclear what the practice is by other county prosecutors; the association that represents district attorneys did not return requests for comment.

Hiawatha Bray can be reached at bray@globe.com.
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