Lead Opinion
The central question we address in this appeal is whether, consistent with the Massachusetts Constitution, the Commonwealth may obtain from a cellular telephone service provider (cellular service provider) historical cell site location information (CSLI)
On appeal, the Commonwealth principally asserts that no search in the constitutional sense occurred because CSLI is a business record of the defendant’s cellular service provider, a private third party, and the defendant can have no expectation of privacy in location information — i.e., information about the subscriber’s location when using the cellular telephone — that he voluntarily revealed. We conclude, like the motion judge, that although the CSLI at issue here is a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case — where the CSLI obtained covered a two-week period — the warrant requirement of art. 14 applies. We remand the case to the Superior Court, where the Commonwealth may seek to establish that the affidavit submitted in support of its application for an order under 18 U.S.C. § 2703(d) demonstrated probable cause for the CSLI records at issue.
1. Background. On the evening of August 24, 2004, Julaine Jules left her workplace and was not seen alive thereafter. Her body was recovered from the Charles River on September 19, 2004, and a criminal investigation into the death commenced.
Early in the investigation, police became aware of the defendant, who had been a boy friend of Jules. State police Troopers Mary McCauley and Pi Heseltine interviewed the defendant in
On September 22, 2004, an assistant district attorney in Middlesex County filed in the Superior Court an application pursuant to 18 U.S.C. § 2703(c) of the SCA for an order under 18 U.S.C. § 2703(d) (§ 2703[d] order) to obtain from the defendant’s cellular service provider, Sprint Spectrum (Sprint), certain records, including CSLI, associated with the cellular telephone used by the defendant;
On November 15, 2012, the defendant filed a motion to suppress evidence of his CSLI, which, he argued, was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. After hearing, the motion judge allowed the defendant’s motion,
At issue here is 18 U.S.C. § 2703, which governs the compelled disclosure of customer communications or records to a governmental entity, and, in particular, 18 U.S.C. § 2703(c)(1)(B) and (d). Section 2703(c)(1)(B)
“A court order for disclosure . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and ar-ticulable facts showing that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investiga-tiont” (emphases added).
The standard required for a § 2703(d) order thus is less than probable cause, see, e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013); it is “essentially a reasonable suspicion standard.” In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d at 287.
The parties agree that the SCA applies to the CSLI in this case,
3. Cellular telephone technology. A brief explanation of cel
In the present case, while the CSLI obtained by the Commonwealth is not in the record, the Commonwealth has provided a description of it that the defendant appears to accept. The CSLI that the Commonwealth received from Sprint includes, for a two-week period (or somewhat longer, see note 8, supra) beginning August 24, 2004, the telephone numbers, the date and time, and the numbers of the cell sites used for all the calls made and received by the defendant’s cellular telephone handset — including, we infer from the § 2703(d) order, unanswered calls — as well as the latitude and longitude of the cell sites to which those calls connected in order to conduct those calls. SMS or short message service messages (text messages), Inter
4. Discussion. In its appeal, the Commonwealth raises three arguments: (1) if a search took place in this case, the defendant has not met his burden to show it involved State action; (2) the defendant has not established that, in fact, a search in the constitutional sense did take place, because he has no reasonable expectation of privacy in the Sprint CSLI records; and (3) if the court nonetheless concludes that the Commonwealth’s obtaining the CSLI did constitute a search in the constitutional sense and required a warrant, the exclusionary rule should not apply. We consider each argument in turn.
a. State action. The Commonwealth contends that there was no State action here because the Commonwealth played no role in collecting the CSLI at issue: the data were captured or collected by Sprint on its own and already existed before the Commonwealth became involved in the case. The argument fails.
The Commonwealth is correct that the protections against unreasonable searches afforded by the Fourth Amendment and art. 14 are only implicated when a search or seizure is “conducted by or at the direction of the State.” District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218, 220-221 (1982). “Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search.” Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002), quoting Commonwealth v. Leone, 386 Mass. 329, 333 (1982). Accordingly, our cases have held consistently that there is no State action when information is disclosed voluntarily to the government by a private party. See, e.g., Commonwealth v. Rivera, 445 Mass. 119, 124
It is altogether different, however, where the government compels a private party to produce and provide to it personal information about a person. On this point, the Commonwealth’s reliance on Coffey, 386 Mass. at 218, is misplaced. In that case, a woman who was receiving harassing calls asked her telephone company to install a cross frame unit trap on her telephone line to determine the source of the incoming calls. Id. at 219. The court found “no evidence ... of any relationship between the telephone company and the State” and concluded that “a finding of State action [was] not warranted,” id. at 222, because the Commonwealth was not involved in placing the trap on the telephone. The Commonwealth makes much of the fact that in Coffey, as here, the government was not actually involved in collecting the data. But the Commonwealth overlooks the critical point that in Coffey, the subscriber requested that the telephone company put a trap on her telephone line and the telephone company appears to have volunteered to turn the resulting information over to the Commonwealth. Id. at 219. Here, in contrast, through a court order, the Commonwealth compelled Sprint to turn over the defendant’s CSLI. Because the § 2703(d) order required the CSLI disclosure and a search was “instigated” by the Commonwealth, State action clearly was involved. See Brandwein, 435 Mass. at 632. The defendant has met his burden to show that the search was conducted by or at the direction of the State.
b. The defendant’s reasonable expectation of privacy. Under both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (intrusion into area where person has reasonable expectation of privacy may violate Fourth Amendment). Commonwealth v.
There is no dispute that if the CSLI were a personal record belonging to the defendant and in his possession, the Commonwealth would have no right to obtain it without complying with the warrant requirements of the Fourth Amendment and art. 14. The Commonwealth anchors its argument in the third-party doctrine adopted by the United States Supreme Court in relation to the Fourth Amendment and in certain circumstances applied by this court in relation to art. 14. If the Commonwealth is correct, then it did not need to obtain a warrant here and was entitled to obtain the CSLI from Sprint pursuant to the § 2703(d) order alone. We turn, therefore, to the third-party doctrine.
The doctrine has its roots in a pair of United States Supreme Court cases that predate cellular telephones. In United States v. Miller, 425 U.S. 435, 438-440 (1976), the Court considered whether the defendant had a Fourth Amendment privacy interest in his bank records, including his checks, deposit slips, and monthly statements. Reasoning that the documents were “business records of the banks,” the Court “perceive[d] no legitimate ‘expectation of privacy’ in their contents.” Id. at 440, 442. Specifically, the records contained information “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” id. at 442, and therefore “[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. at 443. The Court concluded:
“[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”
Id.
Although the Supreme Court has not considered the issue whether the government’s obtaining CSLI from a cellular service provider constitutes a search in the constitutional sense, a number of lower Federal courts have done so. Applying the third-party doctrine articulated in Miller and Smith, a majority of these courts has ruled that an individual has no reasonable expectation of privacy in the CSLI because it is a third-party business record, and therefore the warrant requirement of the Fourth Amendment does not apply.
In earlier cases considering a person’s reasonable expectation of privacy in third-party telephone records under art. 14, this court essentially tracked Fourth Amendment jurisprudence, and applied in substance the Supreme Court’s third-party doctrine. See Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998) (no reasonable expectation of privacy under art. 14 in telephone billing records and therefore search warrant not required; records may be obtained under G. L. c. 271, § 17B, by administrative subpoena on “reasonable grounds for belief” of telephone’s use for “unlawful purpose”);
Considering first cellular telephone use, like other courts, we recognize that the cellular telephone has become “an indispensable part of modem [American] life.” State v. Earls, 214 NJ. 564, 586 (2013). See United States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J., concurring in the judgment) (noting that, as of June, 2011, “there were more than 322 million wireless devices in use in the United States”); CTIA Wireless Quick Facts, supra (reporting that, as of December, 2012, there were more than 326 million wireless subscriber connections in United States). Further, “[m]any households now forgo traditional landline’ telephone service, opting instead for cellular phones carried by each family member.” Blaze Testimony II, supra at 48. See CTIA Wireless Quick Facts, supra (noting that, as of December, 2012, over 38 per cent of all American households were “wireless-only”).
Indeed, cellular telephones are increasingly viewed as necessary to social interactions as well as the conduct of business.
Turning, then, to the nature or function of CSLI, there is no question that it tracks the location of a cellular telephone user, which is the reason the Commonwealth is interested in obtaining it.
“[T]he government’s contemporaneous electronic monitor*248 ing of one’s comings and goings in public places invades one’s reasonable expectation of privacy. We conclude that under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.”
Id. at 382. See Jones, supra at 954-955 (Sotomayor, J., concurring); Commonwealth v. Connolly, 454 Mass. 808, 833-835 (2009) (Gants, J., concurring); People v. Weaver, 12 N.Y.3d 433, 444-447 (2009).
It is evident that CSLI implicates the same nature of privacy concerns as a GPS tracking device. As the New Jersey Supreme Court stated:
“Using a [cellular telephone] to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate. . . . 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.)
Earls, 214 N.J. at 586.
Indeed, as the defendant contends, because of the nature of
We return to the third-party doctrine. As discussed, the Supreme Court has identified the central premise of the doctrine — at least as applied to records held by a third-party telephone company — to be that when one voluntarily conveys information to the company, such as the telephone numbers one is dialing, and knows that the company records this information for legitimate business purposes, one assumes the risk that the company will disclose that information to others, including the government. See Smith, 442 U.S. at 743-744. In other words, in these circumstances, no expectation of privacy would be reasonable. The dissent here argues that at least where the CSLI obtained by the government is limited, as in this case, to location information relating to telephone calls made and received (whether answered or not), the third-party doctrine still fits; the dissent sees “no principled reason” why the third-party doctrine should apply to the telephone numbers recorded in the pen register in Smith but not to this location information. Post at 264-265.
We find a significant difference between the two. In Smith, the information and related record sought by the government,
In sum, even though CSLI is business information belonging to and existing in the records of a private cellular service provider, it is substantively different from the types of information and records contemplated by Smith and Miller, the Supreme Court’s seminal third-party doctrine cases. These differences lead us to conclude that for purposes of considering the application of art. 14 in this case, it would be inappropriate to apply the third-party doctrine to CSLI. This is not to say that under art. 14, the fact of a person’s voluntary disclosure of otherwise private information to a third party is always irrelevant. In other words, we do not reject categorically the third-party doctrine and its principle that disclosure to a third party defeats an expectation of privacy, and we see no reason to change our view that the third-party doctrine applies to traditional telephone records. See, e.g., Vinnie, 428 Mass. at 178; Cote, 407 Mass, at 834-835. However, all the distinctive characteristics of cellular telephone
Having so concluded, the central question here remains to be answered: whether, given its capacity to track the movements of the cellular telephone user, CSLI implicates the defendant’s privacy interests to the extent that under art. 14, the government must obtain a search warrant to obtain it. There is no real question that the government, without securing a warrant, may use electronic devices to monitor an individual’s movements in public to the extent that the same result could be achieved through visual surveillance. See United States v. Knotts, 460 U.S. 276, 282, 285 (1983) (no Fourth Amendment violation when, without warrant, police used electronic tracking device to track defendant’s movement on public roads). However, the Supreme Court has recognized as well that a different result may obtain when the monitoring involves a person’s home because of the person’s fundamental privacy interest attached to that location. See United States v. Karo, 468 U.S. 705, 714 (1984) (concluding that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence”). We similarly have recognized that the “sanctity of the home” warrants protection under art. 14: “all details [in the home] are intimate details, because the entire area is held safe from prying government eyes.” Commonwealth v. Porter P., 456 Mass. 254, 260 (2010), quoting Kyllo v. United States, 533 U.S. 27, 37 (2001). This distinction between privacy interests in public and private spaces makes CSLI especially problematic, because cellular telephones
Considering GPS vehicle location tracking, a number of courts — including this court — have determined that it is only when such tracking takes place over extended periods of time that the cumulative nature of the information collected implicates a privacy interest on the part of the individual who is the target of the tracking. See Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring); United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones, 132 S. Ct. 945 (2012); Rousseau, 465 Mass, at 382. This rationale has been extended to the context of CSLI. See, e.g., In re Application for an Order II, 809 F. Supp. 2d at 122; In re Application of the U.S. for an Order Authorizing the Release of Historical Cell Site Info., 736 F. Supp. 2d 578, 590 (E.D.N.Y. 2010). See also In re Application of the U.S. for an Order Authorizing the Release of Historical Cell-Site Info., U.S. Dist. Ct., No. 11-MC-0113 (E.D.N.Y. Feb. 16, 2011) (discussing “length of time over which location tracking technology must be sustained to trigger the warrant requirement” and recognizing that “any such line-drawing is, at least to some extent, arbitrary, and that the need for such arbitrariness arguably undermines the persuasiveness of the rationale of Maynard,” but ultimately concluding that length of tracking matters to constitutional analysis).
The motion judge, however, ruled that the length of time over which the historical CSLI is collected is not relevant to an assessment of a subscriber’s privacy interest in this information.
We recognize this difference between GPS vehicle location tracking and historical CSLI. Nonetheless, we also recognize that in terms of the constitutional question raised, GPS data and historical CSLI are linked at a fundamental level: they both implicate the same constitutionally protected interest — a person’s reasonable expectation of privacy — in the same manner — by tracking the person’s movements.
In the present case, the defendant made a showing of a subjective privacy interest in his location information reflected in the CSLI records,
c. The exclusionary rule. Finally, the Commonwealth contends that even if the defendant had a reasonable expectation of privacy in the CSLI, the exclusionary rule should not apply because there was no government misconduct, the governing law was unclear, and excluding evidence of the CSLI in this instance can have no real deterrent effect.
The Commonwealth obtained the CSLI in 2004 pursuant to a § 2703(d) order that the Commonwealth properly sought and obtained from a Superior Court judge, and no one disputes that the order met the “specific and articulable facts” standard of
d. Effect of this opinion. Finally, we consider whether this opinion announces a new rule of law and, if so, the scope of its retroactive application. See Commonwealth v. Sylvain, 466 Mass. 422, 428 (2013) (“the determination whether a case announces a ‘new’ rule is at the heart of the retroactivity analysis”). Adopting the United States Supreme Court’s analysis set out in Teague v. Lane, 489 U.S. 288, 301 (1989), this court has long defined a new rule as one in which “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Commonwealth v. Bray, 407 Mass. 296, 301 (1990), quoting Teague, supra. “Under the Teague-Bray framework . . . [i]f a rule is ‘new,’ it applies only to defendants whose cases are not
Here, as just discussed, neither the statute, 18 U.S.C. § 2703(d), nor our cases have previously suggested that police must obtain a search warrant in addition to a § 2703(d) order before obtaining an individual’s CSLI from his or her cellular service provider. See Earls, 214 N.J. at 589 (“Although the parties dispute what might have been gleaned from earlier decisions, neither our case law nor the statute required a warrant for [cellular telephone] location information”). In holding here that the Commonwealth generally must obtain a warrant before acquiring a person’s historical CSLI records, this opinion clearly announces a new rule. See id.
That being the case, and in accordance with the Teague-Bray framework, this new rule applies only to cases in which a defendant’s conviction is not final, that is, to cases pending on direct review in which the issue concerning the warrant requirement was raised.
5. Conclusion. For the reasons' discussed, the order allowing the defendant’s motion to suppress is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
The term “cell site location information” (CSLI) refers to a cellular telephone service record or records that contain “information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone.” In re Application of the U.S. for an Order Authorizing the Release of Historical Cell Site Info., 736 F. Supp. 2d 578, 579 n.1 (E.D.N.Y. 2010) (In re Application for an Order I)- “Historical” CSLI refers to CSLI relating to and generated by cellular telephone use that has “already occurred at the time of the order authorizing the disclosure of such data.” Id. See In re Application of the U.S. for an Order Directing a Provider of Elec. Communication Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 308 (3d Cir. 2010).
Article 14 of the Massachusetts Declaration of Rights provides:
“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”
Because Julaine Jules’s body was found on the Cambridge side of the Charles River, in Middlesex County, the district attorney for that county initiated the criminal investigation into her death. Based on evidence that incidents related to the possible crime had occurred in Suffolk County, the investigation was transferred to the office of the Suffolk County district attorney in late 2007 or early 2008.
The record does not indicate by what means Trooper Mary McCauley obtained these telephone records, but it is reasonable to assume that the records were subpoenaed pursuant to G. L. c. 271, § 17B.
The Commonwealth also appears to have sought an order to obtain similar CSLI records from Jules’s cellular telephone service provider (cellular service provider), Cingular Wireless, for the same time period. That application, and any order that may have issued, are not included in the record here.
The cellular telephone handset used by the defendant was obtained by Keisha Smith — who was identified in Trooper McCauley’s affidavit as another girl friend of the defendant ■— for the defendant’s exclusive use, and apparently Smith was the actual subscriber for the cellular telephone service with Sprint Spectrum (Sprint). The parties do not argue that Smith’s role as owner of the telephone handset and cellular service subscriber has any bearing on the resolution of this case. They essentially treat the defendant as the owner and subscriber, and we do as well. This case is thus factually distinct from those in which a defendant has been found to be unable to demonstrate an expectation of privacy in his cellular telephone records because he used a fictitious name to obtain the cellular telephone service. See, e.g., United States w. Wilson, U.S. Dist. Ct., No. 1:11-CR-53-TCB-ECS-3 (N.D. Ga. Feb. 20, 2013) (finding defendant lacked standing when no evidence linked him to false name on telephone account, which indicated “he [did] not want to be associated with it, or [was] trying to insulate himself fiom any responsibility for it”).
The order under 18 U.S.C. § 2703(d) (2006) (§ 2703[d] order) required the defendant’s cellular service provider to turn over to authorities:
“Any and all information . . . [regarding the defendant’s cellular*234 telephone number], for a 14 day period following and including August 24th, 2004, pertaining to both answered and unanswered calls ... to destination and termination numbers which called or were called by the above telephone number on the above date, including but not limited to all connection logs and records of user activity for each such account, including but not limited to cell tower or site records, AMA Records, Roaming Table Requests, other information indicating the particular cell tower or site in which the subscriber’s telephone handset was used or located, and other types of information that may be used to determine, or assist in determining, the physical location of the said telephone at the time of any of said calls (but not including any call or message content).”
The Commonwealth’s actual application for the § 2703(d) order is not in the record before the court.
The defendant represents, and the Commonwealth does not dispute, that the CSLI records provided to the Commonwealth by Sprint covered a period longer than the fourteen days stated in the § 2703(d) order, although the defendant has not indicated how much longer.
The record contains no information relating to the seven-year interval between the commencement of the investigation into Jules’s death and the indictment of the defendant.
Also before the motion judge was a motion to suppress statements made by the defendant; that motion is not before us.
The CSLI records at issue were not introduced at the motion hearing; the parties agreed at that time that the argument on the motion was “essentially a legal argument” and that an evidentiary hearing was unnecessary.
Following oral argument in this case, this court, taking the view that a
This section provides in pertinent part:
“(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity —
“(B) obtains a court order for such disclosure under subsection (d) of this section . . . .”
See United States v. Graham, 846 F. Supp. 2d 384, 396 (D. Md. 2012) (§ 2703[c][l][B] applies to historical cell site location data, thereby permitting government to seek such data pursuant to order issued under § 2703[d]); In re Applications of the U.S. for Orders Pursuant to 18 U.S.C. § 2703(d), 509 F. Supp. 2d 76, 80 (D. Mass. 2007).
As in the context of location tracking through the use of global positioning system (GPS) technology, “probable cause” in the context of CSLI means “probable cause to believe that a particularly described offense has been . . .
This case concerns CSLI and cellular telephone technology from 2004 and a specific request for CSLI that produced a specific record response. Although we decide this case based on the record before us, we have not restricted our analysis of the constitutional issues raised to the state of cellular telephone technology as it may have existed in 2004. See Kyllo v. United States, 533 U.S. 27, 36 (2001) (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development”); State v. Earls, 214 N.J. 564, 587 (N.J. 2013) (considering technology of older cellular telephone and noting “[w]e are not able to draw a fine line across that spectrum and calculate a person’s legitimate expectation of privacy with mathematical certainty — noting each slight forward advance in technology. Courts are not adept at that task”).
The Commonwealth references Professor Matt Blaze’s 2010 and 2013 congressional testimony in its brief, and the defendant references the 2013 testimony.
Additionally, when 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. See In re Application for Pen Register & Trap/Trace Device with Cell Cite Location Auth., 396 F. Supp. 2d 747, 750-751 (S.D. Tex. 2005); ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 20 (2010) (testimony of Professor Matt Blaze) (Blaze Testimony I).
While data collection and record retention practices vary among cellular service providers, companies “typically create ‘call detail records’ that can include the most accurate location information available to them.” ECPA (Part II): Geolocation Privacy and Surveillance: Hearing Before the H. Subcomm. on Crime, Terrorism, Homeland Security, and Investigations of the H. Comm. on the Judiciary, 113th Cong. 57 (2013) (testimony of Professor Matt Blaze) (Blaze Testimony II). For a number of years, cellular service providers’ call records have routinely included the identity of the cell sector that handled a particular call. Id. Currently, records may include even more detailed information such as registration data or the cellular telephone user’s latitude and longitude. Id.
See Earls, 214 N.J. at 577, quoting Blaze Testimony I, supra, and citing Pell & Soghoian, Can You See Me Now? Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117 (2012) (Pell & Soghoian):
“Network-based location tracking relies on the network of cell sites and antennas .... As mobile devices register with a cell site, make a call, or download data, they ‘communicate’ with a station through radio signal data that is collected and analyzed at the provider’s cell towers. [Blaze Testimony I, supra] at 22. That process enables carriers to identify ‘the position of virtually every handset active in the network at all times.’ [Id.] The information is typically created and stored in a database. Id. at 27. A log is also ordinarily created each time a call is made or data downloaded. [Id.] Pell & Soghoian, [supra] at 128.”
The other way that the location of a cellular telephone can be tracked is through built-in GPS satellite receiver hardware that enables a cellular telephone to track its own location. Blaze Testimony II, supra at 51. This type of location tracking is not at issue here.
Moreover, because cellular telephone users expect their telephones to “do more and to work in more locations,” increased pressure is placed on individual cell sites, each of which has “a limited number of calls that it can process” and “a limited number of data services that it can handle simultaneously from different customers.” Blaze Testimony II, supra at 43, 54. “So as cellular . . . technology has grown and become so important, as we all get different mobile devices and use them more often for more things, with higher bandwidth broadband connections, service providers have had no choice but to reduce the geographic area over which each base station operates so that smaller cell towers, smaller antennas cover a smaller number of users . . . .” Id. at 43.
In addition, cellular service providers are now capable of “triangulating” signals from multiple towers, which “substantially enhance[es]” the precision of location data. In re Smartphone Geolocation Data Application, U.S. Dist. Ct. No. 13-MJ-242 GRB (E.D.N.Y. May 1, 2013).
As indicated in the text, the CSLI sought by the Commonwealth and at issue here is “historical” CSLI, meaning the calls already have occurred when the data are requested. CSLI also can be “prospective,” a term that refers to location data that will be generated sometime after the order authorizing its disclosure. In re Application for an Order 1, 736 F. Supp. 2d at 579 n.1. The privacy interest raised by historical CSLI may be the same as prospective, or “real-time,” CSLI. See id. at 585. But see In re Applications of the U.S. for Orders Pursuant to 18 U.S.C. § 2703(d), 509 F. Supp. 2d at 81 (distinguishing between real-time and historical CSLI). However, we do not need to consider that question in the present case.
See, e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 611-615 (5th Cir. 2013); Graham, 846 F. Supp. 2d at 398; United States vs. Rigmaiden, U.S. Dist. Ct., No. CR 08-814-PHX-DGC (D. Ariz. May 8, 2013); United States vs. Ruby, U.S. Dist. Ct., No. 12CR1073 WQH (S.D. Cal. Feb. 12, 2013); United States vs. Madison, U.S. Dist. Ct., No. 11-60285-CR (S.D. Fla. July 30, 2012); United States vs. Dye, U.S. Dist. Ct., No. 1:10CR221 (N.D. Ohio Apr. 27, 2011), aff’d, 538 Fed. Appx. 654 (6th Cir. 2013); United States vs. Velasquez, U.S. Dist. Ct., No. CR 08-0730 WHA (N.D. Cal. Oct. 22, 2010); United States vs. Suarez-Blanca, U.S. Dist. Ct., No.
See, e.g., In re Application of the U.S. for an Order Authorizing the Release of Historical Cell Site Info., 809 F. Supp. 2d 113, 120-126 (E.D.N.Y. 2011) (In re Application for an Order 71); In re Application for an Order 7, 736 F. Supp. 2d at 588-589.
In Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 729-730 (1997), the Appeals Court had reached the same conclusion.
See Blaze Testimony II, supra at 48:
“There is perhaps no more ubiquitous symbol of our highly connected society than the cellular telephone. Over the course of only a few short decades, mobile communication devices have evolved from being little more than an expensive curiosity for the wealthy into a basic necessity for most Americans, transforming the way we communicate with one another, do business, and obtain and manage the increasing volume of information that is available to us.”
In 2012, there were 2.3 trillion voice minutes of use on wireless devices such as cellular telephones in the United States; in 2007, the comparable annual figure was 2.12 trillion, and in 1997, it was 62.9 billion. CTIA: The Wireless Association, Wireless Quick Facts (Nov. 2013), http://www.ctia.org/ your-wireless-life/how-wireless-works/wireless-quiclc-facts (last viewed Feb. 14, 2014) (CTIA Wireless Quick Facts). As for short message service messages (text messages), there were 2.19 trillion messages sent in 2012; and in 2007, the annual figure was 362.5 billion. Id. (no information about text message use in 1997 was included).
The record indicates that the defendant was engaged in a telephone call for ninety-one consecutive minutes, and according to information contained in Trooper McCauley’s affidavit, while he was so engaged, he was traveling from Sullivan Square in Charlestown to the Haymarket area in Boston, to a Massachusetts Bay Transportation Authority station in the Dorchester area of Boston, and then to his home in Dorchester.
The motion judge focused in her opinion on the similarity between CSLI and GPS data in terms of the ability to track an individual’s location. The Commonwealth argues at length that this was error because there is no evidence in the record of the relative degree of accuracy of CSLI as compared to GPS data, and that the comparative accuracy of location identification, or even the accuracy of location identification on its own, is not the type of fact of which the judge could take judicial notice. In particular, it objects to the finding that over time the difference between CSLI and GPS data has “diminished,” such that “CSLI is now no less accurate than GPS in pinpointing location.” We find it unnecessary to consider this argument because whatever the specific
In United States v. Jones, 132 S. Ct. 945, 948 (2012), the Court considered whether law enforcement officers’ attachment of a GPS tracking device to the defendant’s vehicle in order to monitor its movement was a search within the meaning of the Fourth Amendment. Pointing to the officers’ physical intrusion into the vehicle in order to install the device and applying a property-based common-law trespass theory, five Justices concluded that a search in the constitutional sense had occurred. Id. at 949. The majority also stated that, while not present on these facts, “[i]t may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 954. In concurrence, Justice Alito rejected the majority’s trespass theory, concluding instead that:
“[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. . . . But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”
Id. at 964 (Alito, J., concurring in the judgment). Three Justices joined in this concurrence, and Justice Sotomayor, in a separate concurring opinion, joined
Observations of Justice Sotomayor concerning GPS tracking by the government in Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring), have particular resonance in relation to the government’s acquisition of CSLI:
“Awareness that the Government may be watching chills associational*249 and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring — by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track — may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’ ” (citation omitted).
The defendant argues in part that a person like him using a cellular telephone is not even aware that the cellular service provider collects CSLI, and therefore cannot be said to convey such information voluntarily to the provider. Some courts have adopted similar reasoning. See, e.g., In re Application of the U.S. for an Order Directing a Provider of Elec. Communication Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317-318 (3d Cir. 2010). While this reasoning currently may resonate with many cellular telephone users, it ignores the reality of cellular telephone technology and the growing sophistication of such users in an increasingly digital age. See In re Application for an Order II, 809 F. Supp. 2d at 121 (“This definition [of voluntary sharing] relies too heavily on [cellular telephone] users remaining unaware of the capacities of cellular technology, a doubtful proposition in the first place. Public ignorance as to the existence of cell-site-location records, however, cannot long be maintained. Rather the expectation of privacy in cell-site-location records, if one exists, must be anchored in something more permanent — it must exist despite the public’s knowledge that these records are collected by their cellular service providers”). See also Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. U. L. Rev. 373, 388 (2006).
AIthough, as stated in the text, we do not reject the third-party doctrine as a general matter, the rapid expansion in the quantity of third-party data generated through new technologies raises important questions about the continued viability of the third-party doctrine in the digital age. See Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. . . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks” [citations omitted]). See Henderson, After United States v. Jones, After the Fourth Amendment Third Party Doctrine, 14 N.C. J.L. & Tech. 431, 435-436 (2013).
The link between prospective CSLI and GPS location tracking would appear to be even stronger than is true of historical CSLI, but we do not consider prospective CSLI in this case. See note 24, supra.
Both because the time period for which the CSLI records were sought here was so long and because the CSLI request dates from 2004 — a virtual light year away in terms of cellular telephone technological development — this is not an appropriate case in which to establish a temporal line of demarcation between when the police may not be required to seek a search warrant for historical CSLI and when they must do so. Nevertheless, it would be reasonable to assume that a request for historical CSLI of the type at issue in this case for a period of six hours or less would not require the police to obtain a search warrant in addition to a § 2703(d) order.
In support of his motion to suppress, the defendant submitted an affidavit stating that he acquired his cellular telephone for his own personal use, never permitting the police or other law enforcement officials access to his telephone records. The Commonwealth makes no argument that the affidavit fails to support a subjective privacy interest on the defendant’s part.
39The two exceptions to prospective application of a new rule under Teague v. Lane, 489 U.S. 288, 311-313 (1989), and Commonwealth v. Bray, 407 Mass. 296, 300 (1990), are when a rule is “substantive,” defining a class of conduct that cannot be deemed criminal, or prohibiting imposition of a type of punishment on a particular class of defendants; and when the rule establishes a “watershed” rule of criminal procedure that is “implicit in the concept of ordered liberty,” implicating the fundamental fairness of the proceeding. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 665 (2013), quoting Teague, supra at 311; Commonwealth v. Sylvain, 466 Mass. 422, 428 n.6 (2013).
In part 4.c of this opinion, we determined that the Commonwealth should have an opportunity on remand to show that its application for the § 2703(d) order satisfied the probable cause standard of art. 14. In cases pending on direct review where the issue of the warrant requirement was raised, the Commonwealth may seek a similar opportunity.
In Commonwealth v. Figueroa, 413 Mass. 193, 202-203 (1992), S.C., 422 Mass. 72 (1996), citing Bray, 407 Mass. at 298-299 (among other cases), this
In Griffith, 479 U.S. at 328, the Supreme Court held that a “new” rule for the conduct of criminal prosecutions applies to the case announcing the rule and cases in which the defendants’ convictions are not final. Soon thereafter, this court interpreted the Griffith case as applying only to new rules based on the Federal Constitution, and as not binding on this court where a new rule was based on a State law source. See Commonwealth v. Waters, 400 Mass. 1006, 1007 (1987). See also Commonwealth v. Bowler, 407 Mass. 304, 306 (1990). Cf. Commonwealth v. D’Agostino, 421 Mass. 281, 284 n.3 (1995). We do not have reason here to question the interpretation of the Griffith decision’s reach in Waters, supra, but subsequent to Waters, in applying the Teague-Bray framework in cases analyzing the scope of a new criminal rule based on the Massachusetts Declaration of Rights, this court has consistently referenced with implicit approval the principle that a new criminal rule applies to “those cases still pending on direct review.” See Diatchenko, 466 Mass. at 664; Sylvain, 466 Mass. at 433, 436; Figueroa, 413 Mass. at 202-203. See also Bray, 407 Mass. at 300-301.
The rule announced in this case, that the Commonwealth must generally obtain a search warrant in order to obtain a person’s CSLI records from a cellular service provider, is clearly not “substantive” or a rule that implicates procedures “implicit in the concept of ordered liberty.” Diatchenko, 466 Mass. at 665, quoting Teague, 489 U.S. at 311. Accordingly, neither of the two narrow exceptions to prospective application of a new rule applies.
Dissenting Opinion
(dissenting, with whom Cordy, J., joins). There are at least two different types of historical cell site location information (CSLI). Telephone call CSLI (the type sought by the Com
In Smith v. Maryland, 442 U.S. 735, 743 (1979), the United States Supreme Court held, under what has become known as the third-party doctrine, that telephone users had no subjective expectation of privacy in the telephone numbers they dialed because they “typically know that they must convey [the telephone numbers they call] to the [telephone company; that the [telephone company has facilities for recording this information; and that the [telephone company does in fact record this information for a variety of legitimate business purposes.” The Court also declared that, even if the defendant “did harbor some subjective expectation that the [telejphone numbers he dialed would remain private, this expectation is not ‘one that society is prepared to recognize as “reasonable.” ’ ” Id., quot
In the instant case, the court acknowledges that we have “applied in substance the Supreme Court’s third-party doctrine” but have also recognized that art. 14 may, under certain circumstances, provide more substantive protection than is provided under the third-party doctrine. Ante at 244, citing Commonwealth v. Blood, 400 Mass. 61, 68 n.9 (1987), and Commonwealth v. Buccella, 434 Mass. 473, 484 n.9 (2001), cert. denied, 534 U.S. 1079 (2002). The court declares that “we see no reason to change our view that the third-party doctrine applies to traditional telephone records,” but concludes that “the distinctive characteristics of cellular telephone technology and
The “distinctive characteristics” that the court identifies that lead to this conclusion, however, are characteristics of registration CSLI, not the telephone CSLI that the Commonwealth sought in this case and that the court ordered to be produced. Because nearly everyone now carries a cellular telephone and because CSLI “tracks the location of a cellular telephone user,” the court claims that “[i]t is evident that CSLI implicates the same nature of privacy concerns as a GPS tracking device,” and is arguably even more intrusive of privacy because it tracks the location of the cellular telephone carried on the person of its user rather than the location of his or her vehicle. Ante at 246, 248, 249. The court essentially contends that cellular telephone users are speaking on their cellular telephone so often that telephone CSLI will provide nearly as many location points as a GPS tracking device or registration CSLI, so that telephone CSLI is analogous to a GPS device in a cellular telephone user’s pocket. The court rests this contention on its own experience (“As anyone knows who has walked down the street or taken public transportation in a city like Boston, many if not most of one’s fellow pedestrians or travelers are constantly using their cellular telephones as they walk or ride,” see ante at 246) and on data regarding the annual volume of voice minutes used on cellular telephones in the United States (“In 2012, there were 2.3 trillion voice minutes of use on wireless devices such as cellular telephones in the United States,” see ante at note 29).
But this contention is empirically incorrect. According to the Wireless Association, the same source the court relies on for the annual number of voice minutes, there are more cellular telephones in the United States than United States residents.
The telephone CSLI obtained in this case is much closer to the “traditional telephone records” that, the court agrees, are still governed by the third-party doctrine. While we have long accepted that the Commonwealth may obtain cellular telephone toll records without a search warrant supported by probable cause, it bears noting that the information revealed by those records intrudes deeply on personal privacy. Just as registration CSLI can “provide an intimate picture of one’s daily life,” by revealing “the people and groups they choose to affiliate with and when they actually do so,” ante at 248, quoting State v. Earls, 214 N.J. 564, 586 (2013), so, too, can telephone toll records, which can be used to identify who one speaks with on the telephone and how often.
Telephone CSLI, like telephone toll records, also fits within the traditional justification for the third-party doctrine. Every person who uses a cellular telephone recognizes that the location of the telephone matters in determining whether there is cellular service and, where there is such service, in determining the quality of the telephone connection, which is why at least one cellular telephone company advertises “more bars in more places.” Therefore, every person who uses a cellular telephone recognizes, at least implicitly, that a cellular telephone company must identify the location of a cellular telephone, as well as the telephone number called, before a call can be successfully made from a cellular telephone. Accordingly, although a cellular telephone user may not know that the telephone company records and keeps this information, or want it kept, the user should know
I agree with the court and Justice Sotomayor that, in this digital age, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Ante at note 35, quoting United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring). In the context of cellular telephone records, I would not extend the third-party doctrine to include information that is not necessary to the successful completion of a telephone call, and therefore would not apply the third-party doctrine to registration CSLI. A person obtains a cellular telephone for the purpose of making and receiving telephone calls, not to permit the telephone company or another third party to track the user’s location when the person is not using the telephone. Telephone CSLI is obtained by the telephone company to advance the telephone user’s interest in making or receiving telephone calls and is necessary to the successful completion of those telephone calls, while registration CSLI is not necessary because a telephone call may successfully be made even if the telephone had been powered off moments before.
Separate and apart from the third-party doctrine, the court’s analogy of CSLI to GPS tracking devices affixed to auto
Where that durational line is drawn, that is, determining when a locational surveillance (whether through GPS or CSLI) becomes so intrusive as to constitute an invasion of the reasonable expectation of privacy, is critical in finding the appropriate balance between personal liberty and legitimate law enforcement interests. No CSLI, whether it be telephone CSLI or registration CSLI, may be obtained by the Commonwealth without obtaining judicial authorization under 18 U.S.C. § 2703(d) (2006), and such authorization requires a showing of “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” This may be “essentially a reasonable suspicion standard,” In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 707 F.3d 283, 287 (4th Cir. 2013), but it is merely reasonable suspicion that the CSLI records “are relevant and material to an ongoing investigation,” not reasonable suspicion that the user of the telephone has committed, is committing, or is about to commit an offense. Therefore, where the police
Where a search warrant is required, however, the standard becomes “probable cause to believe ‘that a particularly described offense has been, is being, or is about to be committed, and that [the CSLI being sought] will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense.’ ” Ante at 256, quoting Commonwealth v. Connolly, 454 Mass. 808, 825 (2009). Because of the probable cause requirement and, more importantly, because there must be probable cause that the CSLI will produce evidence implicating the telephone user in a crime, the police will not be able to obtain a search warrant unless they already have obtained significant other information implicating the telephone user in a crime. Therefore, if a search warrant were required for all CSLI, regardless of duration, the police would not be able to use CSLI in my hypothetical shooting case to identify or eliminate possible suspects. A search warrant may appropriately be required where the CSLI, because of its duration and the number of location points it will identify, will reveal so much about the private life and personal affiliations of the telephone user as to invade the reasonable expectation of privacy, but it is not appropriate where the duration will reveal only where the telephone user was at a particular time or over a brief period of time. And, if the search warrant requirement is given inappropriate breadth, it will significantly diminish the ability of law enforcement to solve and to prove crimes, which so often depends on proving the whereabouts of a suspect at the time of the crime through his or her cellular telephone location.
Because the court treats the telephone CSLI at issue in this
“Wireless penetration,” defined as “[the number] of active units divided by the total [United States] and territorial population,” in December, 2012, was 102.2 per cent. CTIA: The Wireless Association, Wireless Quick Facts (Nov. 2013), http://www.ctia.org/your-wireless-life/how-wireless-works/ wireless-quick-facts (last viewed Feb. 14, 2014).
Of course, just as with cellular telephones, the owner of the telephone line may not be the person using the telephone, or it may be used by multiple persons. The only difference between the traditional home telephone and a cellular telephone is that the latter is more likely to have a single user.
The court, quoting State v. Earls, 214 N.J. 564, 587 (2013), declares: “People buy [cellular telephones] to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a [cellular telephone] to share detailed information about their whereabouts with the police.” Ante at 250-251. It is true that no one buys a cellular telephone “to share detailed information about their whereabouts with the police,” but it is also true that no one buys a cellular telephone to share with the police the telephone numbers of the calls they are dialing and receiving. In terms of the third-party doctrine, the meaningful distinction between telephone cell site location information (CSLI) and registration CSLI is not the cellular telephone owner’s willingness to share private information with the police.
I offer no opinion as to whether the third-party doctrine should apply to CSLI obtained when a cellular “smartphone” is using the Internet.
The court contends that there is the “probability that, as CSLI becomes more precise, cellular telephone users will be tracked in constitutionally protected areas,” namely one’s home. Ante at 253. The court noted, however, that the GPS “type of location tracking is not at issue here,” ante at note 21, and there is nothing in the record to suggest that CSLI is likely to become so precise in the immediate future that it will identify where inside a home a person is located. The theoretical possibility that telephone call CSLI may enable the police in the future to track a person’s movement within the home is not an independent ground to require a search warrant supported by probable cause.
The court appears to recognize this concern where it declares that “it would be reasonable to assume that a request for historical CSLI of the type at issue in this case for a period of six hours or less would not require the