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Editorial: Standing up for privacy

Massachusetts’ Supreme Judicial Court stood up for privacy last week regarding the ability of law enforcement officers to collect cell phone records.

While the 5-2 decision has been met with some criticism by those who see it as impeding the efforts of the police to catch or convict those who accused of committing a crime, we see it as presenting a balanced approach.

The SJC ruled on a case involving a 2004 murder investigation in Malden. During the investigation, the cell phone records for the suspect were collected to determine where he was at the time of the killing. The suspect’s attorney argued that seizing the cell phone records, since it was done without a search warrant, violated the state Constitution’s prohibition against unreasonable searches and seizures. Siding with investigators, a Suffolk Superior Court ruled the search was legal, setting up the Supreme Judicial Court case.

The state’s highest court ruled that if law enforcement wants two weeks or more of cell phone data, then a search warrant is required.

For the majority, Justice Margot Botsford wrote, “... we also recognize that in terms of the constitutional question raised, GPS data and historical (cell site location information) 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.”

The justices dissenting in the case said that information sought in the case, that of a person’s location, didn’t wasn’t intrusive enough to warrant this kind of protection.

As it now stands, law enforcement doesn’t need a warrant if the records sought cover less than two weeks. More days than that, then it crosses a threshold, requiring police to seek a warrant. This is not a particularly burdensome requirement for police. In fact, the Suffolk County district attorney’s office, states seeking a warrant for such phone information is now part of its routine.

While we think this is a balanced approach, this won’t be the last word on privacy and cell phones. The United States Supreme Court has taken on two cases also involving cell phone data that will likely have a significant impact on us all, no matter where we might live.

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