VT: Realtime CSLI (“pinging”) requires a SW under state constitution

Realtime CSLI (“pinging”) requires a search warrant under the state constitution, following some states. That information is not regularly kept by cell phone providers, and the state has an interest in protecting that privacy interest. State v. Murphy, 2023 VT 8, 2023 Vt. LEXIS 8 (Feb. 17, 2023):

¶ 38. We agree that individuals do not reasonably expect that by using their phone, they will be sharing their real-time location information with police. They do not expect their cellphone to act as “a hidden tracking device that can be activated by law enforcement at any moment, subject only to the constraints of whether law enforcement knows the phone number and whether the cellphone is turned on.” Id. The fact that police can now, through real-time CSLI, obtain “near perfect surveillance of its user” and “access to a category of information otherwise unknowable,” Almonor, 120 N.E.3d at 1194-95 (quotations omitted), does not mean they should be allowed to do so without judicial oversight. We must guard against allowing technological advances to result in fewer privacy rights. See id. at 1194-95, 1196 (recognizing that “[t]his extraordinarily powerful surveillance tool finds no analog in the traditional surveillance methods of law enforcement” and holding that “[t]o allow such conduct without judicial oversight would undoubtedly shrink the realm of guaranteed privacy … and leave legitimate privacy rights at the mercy of advancing technology” (quotation omitted)); Commonwealth v. Johnson, 119 N.E.3d 669, 677 (Mass. 2019) (similarly recognizing that “privacy rights cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adopted and applied by law enforcement” (quotation omitted)); see also Tracey, 152 So. 3d at 512 (recognizing that “technology has advanced to the point that our whereabouts can be ascertained easily and at low cost by the government,” which makes the “protections of the Fourth Amendment … more, not less, important” (quotation omitted)).

¶ 39. As other courts recognize, moreover, determining someone’s real-time location implicates a distinct privacy interest. Allowing police to obtain this information without any judicial oversight “would empower government agents to invade individuals’ most private and closely-held constitutionally protected activities,” including, for example, “surveil[ling] in real time when, and precisely where, individuals were in the confines of their private homes, at a place of worship, engaging in political activities, or exercising their right to free speech.” Reed, 647 S.W.3d at 250. “Such an invasion is precisely the sort that we find the average citizen unwilling to accept.” Id.