Massachusetts High Court to Become Latest to Rule on Warrant Requirement for Cell Phone Tracking
Should the police be required to get a warrant in order to monitor our location via our cell phones?
Massachusetts’ highest court is likely to answer this critical question when it rules on . The ACLU is representing Augustine in an appeal pertaining to his motion to suppress evidence obtained without a warrant. Our attorneys argue that, under the Fourth Amendment to the US Constitution and article Fourteen of the Massachusetts Declaration of Rights, police in Massachusetts must get a warrant before they can track our mobile phones. If the state’s Supreme Judicial Court agrees, Massachusetts residents will all benefit from significantly enhanced privacy protections.
The Massachusetts case comes as courts around the country grapple with this question. Federal courts considering this question are divided, while New Jersey’s Supreme Court found that under that state’s constitution, a warrant was required.
The government says we have no privacy interest in our location data
The law in Massachusetts, like in most places nationwide, is A good ruling in Augustine could go a long way towards fixing that problem for the people of the Commonwealth.
The facts in this case are relatively simple. Back in 2004, police wanted to know where Shabazz Augustine was when a crime took place. To find out, they sent what is called a 2703(d) order to his cell phone company to obtain two weeks worth of “cell site location information” showing the location of his phone. Unlike a warrant, which requires investigators to show probable cause that the specific places to be searched will turn up evidence of a crime, 2703(d) orders require only that law enforcement show a judge that the search is relevant and material to an ongoing investigation. The order also came with a gag provision that barred the company from disclosing to Augustine that law enforcement officials were interested in learning about his travel history.
The gag provision meant that Augustine’s trial attorney didn’t learn about this until years after the phone company had complied, meaning the damage was done. Since he couldn’t go back in time to prevent the information from being disclosed, his attorney moved to suppress any evidence obtained without a warrant.
The defense attorney for Augustine argued that the kind of court order police obtained and used to acquire his client’s private information was illegal under both the US Constitution and the Massachusetts Declaration of Rights, our state constitution. His lawyer argued that physically tracking someone using this kind of technology is a search, and that because we have a privacy interest in our location details, the search requires a probable cause warrant.
The government, meanwhile, argued that Massachusetts residents don’t have any privacy interest in the information our cell phones communicate about our physical locations. That should sound alarming, and it is. But it isn’t a minority view among law enforcement. Indeed, the top law enforcement officials in the land – the Department of Justice – have the same exact thing.
Augustine’s trial attorney convinced a judge that the cell site location evidence was obtained illegally, and the judge suppressed the evidence gleaned from the cell phone provider. But the Commonwealth appealed that ruling. That’s how we got to where we are today: a hearing before the Supreme Judicial Court. Now, the Commonwealth’s highest court will decide whether or not the lower court made the right decision when it suppressed the cell site location evidence. Crucially for everyone in the Commonwealth with a phone, the justices also have the opportunity to rule that cell phone location tracking requires a warrant.
An expanded version of this post can be found on the .
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.