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TOM KEANE

With cellphone ruling, a win for privacy

H. Hopp-Bruce/globe staff

John Adams, author of the Massachusetts Constitution, would undoubtedly be delighted. The Supreme Judicial Court ruled last week that warrants are required before police can track people’s locations by their smartphones. It’s a big win for privacy rights and for Article 14 of Adams’s brainchild, which itself served as a model for the US Constitution. Indeed, the court’s logic may bolster privacy rights even further.

The Fourth Amendment to the US Constitution and Massachusetts’ Article 14 contain basically the same idea. Citizens and their property can’t be searched unless police obtain a warrant — something they can only get if they show they have “probable cause” to suspect someone of a crime.

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The SJC case involved a murder, allegedly by suspect Shabazz Augustine. Police and prosecutors seized his cellphone records from Sprint and, using cellphone tower data, tracked Augustine’s movements over an almost two-week period. His lawyers argued that this amounted to a search and, because no one had obtained a warrant, the records shouldn’t be allowed.

Most of us would think it obvious this was a search but over the last several decades, courts have opened up some significant loopholes. Some of those are sensible. If the police see something, say a gun, in plain sight, they don’t need to run and get a warrant to seize it, for example. But other loopholes are more worrisome, particularly one called the “third-party doctrine.” It works like this:

Let’s say that the police want to search your bank records, hoping to find nefarious activity. Since those are your bank records, you’d think a warrant might be needed but, in fact, courts don’t require one. This wouldn’t be a search of you, runs the thinking, but rather a search of a third party — the bank. There’s no expectation of privacy because you voluntarily gave the bank your information. With some imagination, you can see where this leads. Without any warrant at all, cops might go to the phone company and find out who you’ve been calling. They could go to the library and get a list of books you’ve borrowed. They could seize credit card records and find out what you’re buying.

In the digital world, where data are routinely collected and retained by any manner of companies, the amount of information about you is staggering. And none of it, thanks to the third-party doctrine, is protected. This is, plain and simple, a dodge of such magnitude around the warrant requirement that it almost eviscerates it.

And the SJC appears to be figuring that out. People carry smartphones with them everywhere, the majority noted, meaning that the police could, if they wanted, track the movements of everyone. The disquieting notion of a perpetual surveillance society gave the justices heartburn.

It’s interesting to read the court’s opinion, if only to watch the gyrations of the majority as it tries to distinguish allowed “third-party” exceptions from the one it plans to disallow — searches of cellphone records. The court, for example, says that the third-party exception is OK in the case of banks because people know that they’re sharing account information but it’s not OK for smartphones because people don’t know they’re sharing location information. Really? Anyone who uses Foursquare or proximity apps such as Skout knows that’s exactly what’s going on. Does the court’s new rule apply only to those ignorant of the capabilities of their smartphones?

I suspect that the Massachusetts court will eventually recognize the third-party doctrine is itself flawed. Whether we keep our money under a mattress or in a bank, information about our finances should be considered private — and getting it should require a warrant. The same should apply to telephone records, purchasing histories and tracking of our movements.

And by the way, none of this is hard to do. Warrants are an important protection for privacy rights, but they don’t have to stymie law enforcement. After the decision, Suffolk County DA Dan Conley observed that, when it comes to cellphone records, his office gets warrants anyway. “We’ve been ahead of the curve for some time now,” he said. That underscores the wisdom of the SJC’s ruling. Privacy rights and public safety aren’t either-or propositions.

Tom Keane can be reached at tomkeane@tomkeane.com.
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