JURIST Guest Columnist Hanni Fakhoury of Electronic Frontier Foundation discusses state courts and cell phone privacy…

In a span of ten days, three separate state Supreme Court decisions expanded privacy protections in cell phones in important ways. While residents of Massachusetts, Texas and Washington got a little more security, state and federal courts got a glimpse of how old and hallowed principles of privacy can survive the technological onslaught of the 21st century. Full disclosure: I submitted an amicus brief in all three of these cases on behalf of the Electronic Frontier Foundation (“EFF”).

Massachusetts: Cell Phone Tracking Requires a Warrant

In Commonwealth v. Augustine, police, without a search warrant, obtained two weeks worth of historical cell site records from Sprint in connection with a murder investigation. Cell site data is simply the cell phone company’s record of which cell phone tower a user connects to throughout the day when using their phone for phone calls, text messages, surfing the web or using apps like Facebook and Twitter. Augustine argued that police violated the Massachusetts state constitution’s prohibition against unreasonable searches and seizures. While federal courts faced with this argument under the Fourth Amendment to the US Constitution have mostly rejected arguments that a search warrant is needed to obtain cell site records, state courts are free to interpret their state constitution to provide greater privacy protection than the Fourth Amendment. Last year, the New Jersey Supreme Court believed a warrant was needed under state law for cell site data in State v. Earls.

Massachusetts followed New Jersey’s lead, requiring police to obtain a search warrant to access historical cell site records under state law. Extending its prior decision in Commonwealth v. Rousseau—which held that a passenger in a car had standing to challenge pervasive GPS monitoring of the car even if they didn’t own or operate the car—Augustine found people also have a right to be free from invasive, long term tracking of their movements through their cell phone, even when those movements are done in public places.

While the commonwealth quibbled with whether cell tracking is as precise or accurate as GPS tracking of a car, the Supreme Judicial Court believed cell tracking implicated even greater privacy concerns than GPS tracking because unlike a device attached to a car, a cell phone is carried almost everywhere a person goes, even by their bedside at night. As a result, these records reveal a detailed and intimate portrait of a person’s location over time, including a person’s patterns of movements and whom they associate with. Indeed if the location information wasn’t precise, there’d be no reason for the police to request it in the first place.

Texas: Cell Phones are Not the Legal Equivalent of a Pair of Pants

A week after Augustine, the Texas Court of Criminal Appeals decided State v. Granville, which hinged in part on the question of whether a cell phone is the legal equivalent of a pair of pants. Local police officer arrested Granville, a high-school student, on a misdemeanor charge and booked him into the county jail. Three hours after his arrest, a different officer retrieved Granville’s phone from the evidence locker and, without a warrant, looked through the contents of the phone for evidence of an unrelated crime. The state attempted to justify the search by claiming that, similar to clothing worn by an inmate, once the phone was in the control of the jail officials, Granville no longer had any expectation of privacy in its contents.

Common sense says a cell phone and a pair of pants are not the same thing and thankfully, the high court agreed. The majority opinion noted that “given modern technology and the incredible amount of personal information stored and accessible on a cell phone,” a phone was indeed not like a pair of pants and therefore people don’t lose their expectation of privacy in the contents of the phone merely because it was stored in the jail’s property room.

Washington: People Don’t Assume the Risk Police Will Intercept Text Messages

The day after Granville was decided, the Washington Supreme Court ruled in State v. Hinton that police violated state law when, after seizing a cell phone from a suspect during a drug investigation, it reviewed old text messages and monitored and responded to incoming texts, pretending to be the suspect and arranging drug deals with the defendant Hinton. The state had argued that Hinton didn’t have an expectation of privacy in the text messages once they were sent to the suspect’s phone because he had assumed someone else could intercept the texts, or that the person they thought they were communicating with was really someone else.

The court disagreed, explaining that the societal expectation that police won’t intercept phone calls or postal letters extends to text messages. It noted, “unlike letters, which are generally delivered to the home where they remain protected from intrusion, text messages are delivered to a recipient’s cell phone instantaneously and remain susceptible to exposure because of a cell phone’s mobility.” But just as putting a letter in the mail doesn’t eliminate the sender’s privacy interest in its contents, the same is true of text messages.

Technology Matters

All three of these cases accept the fact that technology changes have constitutional significance. These decisions appreciated the breadth of data revealed by and stored on a cell phone meant it was foolish to analogize to physical items like a physical GPS device, a pair of pants or a letter sent in the mail. As the US Supreme Court gets ready to decide this term whether police can search a cell phone without a warrant incident to arrest—and as the challenges to the NSA’s controversial surveillance practices work their way through the courts—these opinions provide a blueprint on how to treat the wealth of information stored in cell phones and other electronic devices. The nature of the item or the breadth of data being searched matters in determining what the reasonable scope of a search can be. Although it may be reasonable for the police to rummage through an inmate’s clothing, it is a far different thing to rummage through their cell phone, which contains far more information than could ever be stored in the pockets of a pair of jeans.

These cases also rejected the false notion that the mere act of exposing some information to others gives law enforcement free reign to seize and search through the reams of sensitive data emanating from and stored on cell phone. As constitutional challenges to new technologies have been raised in court, both the state and federal governments have raised the US Supreme Court’s 1979 decision in Smith v. Maryland to argue that people don’t have an expectation of privacy in information turned over and exposed to others. But the capabilities of new technologies are requiring courts to not only confront these old decisions dealing with antiquated technologies, but more fundamentally require courts to reexamine what “exposure” means in the 21st century.

A person driving home from work can reasonably be said to briefly expose their location to the driver next to them. But no driver expects they’ll be followed in public for days, weeks or months on end, even if all of their driving is done in public. Similarly, a person may expose their backyard to fleeting glimpses by a low flying helicopter for a few minutes. You may expect your next-door neighbor to see you enter your home every once in a while. But no one expects to have a drone stealthily flying over their backyard with a high-powered camera, recording everything that occurs in your backyard. And you would certainly be bothered if you found a video camera pointed at your front door for six weeks, watching everyone who comes and goes from your house.

In Augustine, the Supreme Judicial Court acknowledged this reality, finding the information at issue in Augustine—phone numbers a person dialed—was less revealing than the location information sought here. Granville and Hinton implicitly rejected Smithtoo, finding that privacy expectations existed even when the defendants had lost their ability to exclusively control the phone or text messages. Massachusetts, Texas and Washington got it right. Hopefully as more state and federal courts confront these types of issues, they will too.

Hanni Fakhoury is a Staff Attorney with the Electronic Frontier Foundation and focuses on criminal law, privacy and free speech litigation and advocacy.

Suggested citation: Hanni Fakhoury, State Courts Stepping Up on Cell Phone Privacy, JURIST -­ Hotline, Mar. 19, 2014, http://jurist.org/hotline/2014/03/hanni-fakhoury-state-courts-privacy.php.