MA Suffolk: Since state constitution protects CSLI, it also protects against gathering constant pinging info without probable cause for warrant

Since the SJC said in Commonwealth v. Augustine, 467 Mass. 230, 4 N.E.3d 846 (2014), that CSLI was protected under the state constitution, it must also apply to information about constant pinging which is even more intrusive. Commonwealth v. Jordan, 2015 Mass. Super. LEXIS 141 (Suffolk Co. Dec. 28, 2015):

The Court concludes that the constitutional protections afforded under art. 14 to telephone call CSLI apply with full force to so-called registration CSLI, which is generated and recorded every few seconds or minutes whenever a cell phone is turned on, even when the phone is not being used to perform any function. Compare Augustine I, supra, at 238 n.18 (“[W]hen they are ‘powered on,’ cellular telephones regularly identify themselves to the nearest cell site with the strongest signal, through a process known as ‘registration.’ Registration is automatic, occurring every seven seconds.”), with In re Application for Tel. Info. Needed for a Criminal Investigation, No. 15XR90304HRL1LHK, 2015 WL 4594558, at *2 (U.S.D.C. N.D.Cal. 2015) (Koh, J.) (“A cell phone that is switched on will ping the nearest tower every seven to nine minutes.”) (citing U.S. Dept. of Homeland Sec., Lesson Plan: How Cell Phones Work, p. 9 (2010), available at https://www.eff.org/files/filenode/3259_how_cell_phones_work_lp.pdf, (last viewed 26 December 2015)).

There is no reason why police requests for historic telephone call CSLI would implicate privacy interests protected by art. 14, as the SJC held in Augustine I, but registration CSLI would not. “[U]nder art. 14, a person may reasonably expect not to be subjected to extended GPS [global positioning system] electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.” Commonwealth v. Rousseau, 465 Mass. 372, 382 (2013). When the SJC held that art. 14 protects telephone call CSLI, it observed that such CSLI “implicates the same nature of privacy concerns as a GPS tracking device.” Augustine I, supra, at 248. As the SJC explained:

Location information gleaned from a [cellular telephone] provider can reveal not just where people go—which doctors, religious services, and stores they visit—but also the people and groups they choose to affiliate with and when they actually do so. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers, and others … In other words, details about the location of a [cellular telephone] can provide an intimate picture of one’s daily life. (Citations omitted.)

Id., quoting State v. Earls, 214 N.J. 564, 586 (2013). Registration CSLI paints an even more detailed picture of a cell phone user’s activities than telephone call CSLI. “Registration CSLI, for all practical purposes, is continuous, and therefore is comparable to monitoring the past whereabouts of the telephone user through a global positioning system (GPS) tracking device on the telephone[.]” Augustine I, 467 Mass. at 259 (Gants Click for Enhanced Coverage Linking Searches, J., dissenting); accord Commonwealth v. Estabrook, 472 Mass. 852, 858 n.12 (2015). Thus, registration CSLI implicates constitutionally protected privacy interests even more strongly than telephone call CSLI.

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The same considerations apply with full force to registration CSLI. “Cell phone use is not only ubiquitous in our society today but, at least for an increasing portion of our society, it has become essential to full cultural and economic participation … People cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking active participation in society through use of their cell phones.” United States v. Graham, 796 F.3d 332, 355-56, reh’g en banc granted, No. 12-4659, 2015 WL 6531272 (4th Cir. 2015) (cell phone users retain reasonable expectation of privacy in CSLI recorded and stored by service providers).