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SJC rules private citizens can not deploy GPS tracking devices to spy on people

GPS tracking devices, like the ones shown here used by scientists to track the movements of bats, cannot be deployed by private citizens to spy on others, the state’s highest court ruled.
GPS tracking devices, like the ones shown here used by scientists to track the movements of bats, cannot be deployed by private citizens to spy on others, the state’s highest court ruled. Bonnie Jo Mount/Washington Post

In a decision targeting private citizens, the state’s highest court ruled for the first time that deploying GPS tracking devices onto someone’s car qualifies as an act of criminal harassment, an action the justices took to keep Massachusetts criminal laws on pace with new technology.

The Supreme Judicial Court Friday unanimously ruled Hingham police were right to charge Francis T. Brennan with criminal harassment when he attached GPS tracking devices to two vehicles owned by a Hingham couple — one of whom was in the Coast Guard — that he did not know.

“As technology has advanced, the tools that people can use to harass victims have increased,” Justice Elspeth B. Cypher wrote for the court. “The law has not fully caught up to the new technology, and given the speed with which technology evolves, it may sometimes leave victims without recourse.”

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Cypher wrote the victims lost sleep, installed security cameras around their home, and changed work hours so they could be together at night, and that the impact of Brennan’s alleged actions on them supported the harassment charge.

“In these circumstances, the defendant’s behavior satisfied the three acts necessary for the criminal harassment statute. . . . The acts were done willfully and maliciously, seriously alarmed [the victims], and would cause a reasonable person to suffer substantial emotional distress,’’ she wrote.

According to the court, Brennan allegedly used his iPhone and online software to track the couple’s whereabouts on 17 different times over 10 days in 2016, eventually admitting to Coast Guard investigators and police he suspected the man was engaged in an affair with his wife.

In court papers, there is no evidence cited that Brennan’s accusation was accurate.

Hingham District Court Judge Julianne Hernon ruled that Brennan’s alleged actions did not qualify under the criminal harassment statute as the law is currently written because he did not take three separate actions as required for prosecution.

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In court papers, Brennan’s attorney, Sabrina Bonanno, urged the SJC to side with Hernon. She stated, “The Commonwealth is attempting to criminalize the act of a private citizen placing a GPS tracking device on another person’s vehicle. Such an act does not constitute a crime.”

Bonanno wrote that state lawmakers must first change the law before Brennan, or any one else, faces criminal charges for using readily available 21st-century technology for private matters. Following the court’s ruling that reactivates the criminal case against her client, Bonanno issued a brief statement.

“While I understand the court’s reasoning, I respectfully disagree with the decision,’’ she said. “But we respect the process.”

Plymouth District Attorney Timothy J. Cruz’s office said in court papers that Brennan acted maliciously, eroding the couple’s sense of security through his actions, even though they were not aware what was happening until notified about it by investigators.

“Their reactions were the product of multiple separate discoveries of the defendant’s conduct: the first tracking device; the second tracking device; the accusation of an affair; and the tracking of their vehicles over ten days,’’ prosecutors wrote. “The defendant’s actions would cause a reasonable person to suffer substantial emotional distress.”’

In a statement, Cruz applauded the court’s ruling.

“We are pleased with the SJC’s decision,” Cruz said. “We will now go forward and pursue this case accordingly.”

In the ruling, Cypher wrote that harassment can be found even when a victim is unaware of what is happening. “The couple did not have to know in real time that they were being tracked for the defendant’s conduct of mapping their locations to constitute” an illegal act, she wrote.

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The SJC urged the legislature to consider reviewing the law, and to make clear under what circumstances the private use of GPS will not be considered a crime.


John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.