Academic journal article The Journal of High Technology Law

Privacy Protections Left Wanting: Looking at Doctrine and Safeguards on Law Enforcement's Use of GPS Tracking and Cell Phone Records with a Focus on Massachusetts

Academic journal article The Journal of High Technology Law

Privacy Protections Left Wanting: Looking at Doctrine and Safeguards on Law Enforcement's Use of GPS Tracking and Cell Phone Records with a Focus on Massachusetts

Article excerpt

I. Introduction

The Fourth Amendment to the U.S. Constitution protects individuals against unreasonable searches and seizures of their "persons, houses, papers, and effects." (1) Before executing a search or seizure (arrest, placing an individual in custody, impounding personal effects, property (2)), police must obtain a warrant supported by probable cause. (3) Massachusetts has, at times, applied a more stringent standard under its constitution on search and seizure matters. (4) This Note will focus mainly on how Massachusetts courts have approached law enforcement's use of Global Positioning System (GPS) technology to apprehend a criminal suspect and subsequent prosecution and to the use of historical cell site information data--records on

cell phone usage which police can obtain from phone providers. (5) This Note will address GPS tracking of defendants where courts required a warrant, and other circumstances under which they excepted the warrant requirement. It will also consider policies and recommendations provided by the U.S. Department of Justice (DOJ), efforts by the legislature, and implementation by the police. Legislation like the USA PATRIOT Act of 2001 has expanded the government's ability to use electronic surveillance domestically in the name of public safety. (6) The tension between our desire to preserve public safety and to maintain a sense of individual privacy, while upholding constitutional protections against abuse of surveillance measures, has raised issues because of the increased sophistication and ubiquity of consumer electronics. (7)

Some Massachusetts lawyers have observed, after United States. v. Jones, (8) that in light of circuit splits on Fourth Amendment issues pertaining to GPS surveillance, its use as a tool for law enforcement and prosecution is ripe for the Supreme Judicial Court (SJC) to take up again. (9) Jones has not settled issues arising where GPS is intrinsic to the device for tracking, as it only addressed a situation where an external GPS device is attached. (10) The Supreme Court has left state courts and law enforcement leeway to determine how to balance GPS tracking and Fourth Amendment protections against unreasonable search and seizure. (11)

This Note will look at Commonwealth v. Connolly, (12) the most recent case the SJC has heard on the use of GPS on a defendant's automobile, bearing some factual similarity to Jones. (13) Connolly, too, failed to make clear what the policy should be where no physical attachment of a separate device is required, such as when law enforcement utilizes an individual's cellphone, smartphone, or vehicle already equipped with the GPS device in order to track that person. (14) In such cases, police could request that telephone carriers grant access to stored information generated by their target's use of the GPS. (15) Will a warrant supported by probable cause always be required for impounding those records? What about legal issues arising where police have used more creative means like installing dummy cell towers that allow interception of a defendant's telecommunications? Are there exigent circumstances under which a warrant will not be required as in other search and seizure cases because of the risk of defeating the purpose of police pursuit, such as likely destruction of evidence or risk of violence where a defendant is armed?

This Note will look at some of the proposals intended to protect individuals who arguably face a violation of a reasonable expectation of their privacy in terms of locational data, even when third party resources are being used to generate that data as the individuals move through public and private spaces. (16) Although legislation that would require phone carriers to retain data for only as long as it would be useful to the customer may be a promising measure, would that in turn be impractical for the carriers themselves as part of their business records? (17) There likely needs to be stronger policy that creates clarity and continuity for government agencies and law enforcement. …

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