“Pinging” for Cell Phone Location Data Unconstitutional Without a Warrant

The law is ever-changing. Society changes. Ideologies change. And technology advances. It is often difficult for the court’s to keep up with changes in the world and implementing or amending laws that are fair or outdated. But this is particularly so when it comes to cell phone technology and how to balance or implement the appropriate legal safeguards so that our constitutional protections are balanced and protected in every aspect of life. In recent years, the Massachusetts courts have been at the forefront of novel and legal issues as it pertains to cell phone privacy protections.

Several years ago, Massachusetts appellate courts addressed the issue of whether a warrant is required for the police to obtain a person’s cell site location information, or “CSLI” (the data from which your cell phone connects to a cell phone tower when a call is made, thereby providing an approximate location of the device at the time of the call). The Massachusetts Supreme Court ruled that a warrant satisfying the standard of probable cause was required for the government to obtain CSLI data.

But what about real time data or “pinging” of one’s cell phone to obtain the precise location of a device?

Cell phones can transmit signals, irrespective of whether a call is being made. Police or the government can “ping” or compel any particular cell phone to transmit a signal. The cell phone user would not know that his phone is being pinged, and this signal would then reveal to the government the real-time location information.

Several courts across the country have addressed the issues of a persons privacy in their cell phone data (including stored personal information and messages) and historical CSLI tracking. Both the United States Supreme Court and the Massachusetts Supreme Court have issued decisions guarding against “the power of technology” against privacy rights. Neither court, however, has, until recently, addressed whether the police action of “pinging” an individual’s cell phone to reveal its real-time location intrudes on any reasonable expectation of privacy citizens have in their cell phones.

In its recent decision in Commonwealth v. Almonor, the Massachusetts Supreme Judicial Court concluded that police action in causing a cell phone signal to emit its real-time location information does implication reasonable expectations of privacy and a search warrant is required. Individuals have cell phones for many reasons: for business; personal use; communication; e-mails/texts; internet access; but primarily to make and receive phone calls. These reasons, all legitimate, do not authorize the police, without judicial approval and oversight, to invade, manipulate or otherwise compel one’s cell phone to transmit its location information or reveal any other private information. As such, the court reasoned that “society reasonably expects that the police will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location.”

Courts across the country have recognized that cell phones have become an indispensable part of our daily lives. Not only do we use them to communicate with others, but we store other personal and private information (either on the device itself or in the “cloud”). We have our kids’ photos; bank information; business documents, etc. The vast majority of individuals carry cell phones for legitimate purposes, and it is unbeknownst to most people that they are also carrying a hidden tracking device that can be activated by police at any time.

Of course, there could very well be “exigent” or emergency circumstances where a warrant would not be required to obtain real-time location information. Such circumstances might include, for example, a murder suspect or someone who is armed and dangerous and poses an immediate threat to others; tracking a person suspected of kidnapping a child; or tracking a missing person. In such circumstances, applying for and waiting for judicial approval for a warrant is often impracticable where time is of the essence.

The courts, therefore, are faced with the challenge of balancing these competing interests. The privacy interests of ordinary citizens versus law enforcement’s desire to utilize all the surveillance techniques and options at their disposal.

Boston Criminal Lawyer Lefteris K. Travayiakis has extensive experience with cases involving evidence of cell phone and CSLI data; and has successfully challenged and been successful in suppressing or excluding such evidence at trial.