Massachusetts supreme court says cops should have gotten warrant before obtaining cell phone location data

Court takes a “different approach” with respect to one’s expectation of privacy

After defendant’s girlfriend was murdered in 2004, the police got a “D order” (an order authorized under 18 U.S.C. 2703(d)) from a state court to compel Sprint to turn over historical cell site location information (“CSLI”) showing where defendant placed telephone calls around the time of the girlfriend’s murder. Importantly, the government did not get a warrant for this information. After the government indicted defendant seven years later, he moved to suppress the CSLI evidence arguing a violation of his Fourth Amendment rights. The trial court granted the motion to suppress, and the government sought review with the Massachusetts supreme court. That court agreed, holding that a search warrant based on probable cause was required.

The government invoked the third party doctrine, arguing that no search in the constitutional sense occurred because CSLI was a business record of the defendant’s cellular service provider, a private third party. According to the government, the defendant could thus have no expectation of privacy in location information — i.e., information about the his location when using the cell phone — that he voluntarily revealed.

The court concluded that although the CSLI at issue was 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 the Massachusetts constitution applied. The court made a qualitative distinction in cell phone location records to reach its conclusion:

No cellular telephone user . . . voluntarily conveys CSLI to his or her cellular service provider in the sense that he or she first identifies a discrete item of information or data point like a telephone number (or a check or deposit slip…) … 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 [the Supreme Court’s seminal third-party doctrine cases]. These differences lead us to conclude that for purposes of considering the application of [the Massachusetts constitution] in this case, it would be inappropriate to apply the third-party doctrine to CSLI.

To get to this conclusion, the court avoided the question of whether obtaining the records constituted a “search” under the Fourth Amendment, but focused instead on the third party doctrine (and the expectation of privacy one has in information stored on a third party system) in relation to the Massachusetts constitution.

In a sense, though, the court gave the government another bite at the apple. It remanded the case to the trial court where the government could 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.

Commonwealth v. Augustine, — N.E.3d —, Mass. , 2014 WL 563258 (Mass. February 18, 2014)

Hulk Hogan sex tape redux: Another court holds Gawker had First Amendment right to publish video excerpts

As we discussed here on internetcases back in November 2012, someone surreptitiously filmed Hulk Hogan engaged in sex acts with someone other than his wife. When Gawker posted an article and video excerpts about that, Hulk sued in federal court for invasion of privacy. The federal court denied the preliminary injunction, holding that to bar Gawker from publishing the information would be an unconstitutional prior restraint on speech.

hulk_hogan_tapeA few weeks after the federal court denied his motion for preliminary injunction, Hulk voluntarily dismissed the federal case and filed a new case in state court. Unlike the federal court, the state court granted a preliminary injunction against Gawker publishing the information and the video excerpts. Gawker sought review with the Court of Appeal of Florida. On appeal, the court reversed the lower court’s order granting the preliminary injunction.

The state appellate court’s decision closely tracked the federal court’s reasoning from 2012. The court observed that where matters of purely private significance are at issue, First Amendment protections are often less rigorous. But speech on matters of public concern is “at the heart of the First Amendment’s protection.”

The court found that the sex tape excerpts and information that Gawker published were matters of public concern. Much of this was from Hulk’s own doing — he injected himself into the public spotlight not only as a professional wrestler, but also through books detailing his sexual indiscretions, radio interviews, and other public pronouncements about his “conquests.”

In arguing that Gawker’s speech was not of public concern, Hulk looked to Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal.1998), a case that dealt with the infamous sex tape that Bret Michaels and Pamela Anderson made. In that case, the court found defendant’s redistribution of the video was not protected by the First Amendment, in part because the distribution was purely commercial. The court didn’t buy it.

But wasn’t Gawker’s use commercial as well? The court drew a distinction:

We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media’s website. However, this is distinguishable from selling the [Hulk] Sex Tape purely for commercial purposes.

So the court found that despite his brawn, Hulk failed to carry his “heavy burden” of overcoming the presumption that a preliminary injunction would violate the First Amendment in this situation.

Gawker Media, LLC v. Bollea, 2014 WL 185217 (Fla.App. 2 Dist., January 17, 2014)

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com.

Is the future a trade between convenience and privacy?

This TechCrunch piece talks about how (predictably) Google wants to build the “ultimate personal assistant.” With Google’s collecting user preferences cross-platform and applying algorithms to ascertain intentions, getting around in the world, purchasing things, and interacting with others could get a lot easier.

But at what cost? The success of any platform that becomes a personal assistant in the cloud would depend entirely on the collection of vast amounts of information about the individual. And since Google makes its fortunes on advertising, there is no reason to be confident that the information gathered will not be put to uses other than adding conveniences to the user’s life. Simply stated, the platform is privacy-destroying.

What if one wants to opt-out of this utopically convenient future? Might such a person be unfairly disadvantaged by, for example, choosing to undertake tasks the “old fashioned” way, unassisted by the privacy eviscerating tools? This points to larger questions about augmented reality. As a society, will we implement regulations to level the playing field among those who are not augmented versus those who are? Questions of social justice in the future may take a different tone.

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