8 ms·

Massachusetts Court Blocks Warrantless Access to Real-Time Location Data

639 points by Elof 7y ago

givinguflac 7y ago
Another sane decision from MA courts, now we just need some of that logic to trickle up to the national level.
- maxerickson 7y ago
  We probably need legislation at the federal level more than a court decision.
mikece 7y ago
Small victory bit a great first step. Searches by ANY agent of the government without a warrant, even of private data brokers, that is meant for prosecution should be illegal.
phsource 7y ago
While I personally agree with the ruling, there's a good chance that it will get appealed (and potentially overturned), since US v. Carpenter, decided back in 2017, had a narrow holding. The article mentions that the EFF: > ...asked the court to recognize, as the Supreme Court did in U.S. v Carpenter, that people have a constitutional right to privacy in their physical movements. But SCOTUSblog's reporting of that decision makes it clear that [1]: > Roberts also left open the possibility that law-enforcement officials might not need a warrant to obtain cell-site location records for a shorter period of time than the seven days at issue in Carpenter’s case – which might allow them to get information about where someone was on the day of a crime, for example. There are two dimensions involved: who's being tracked, and how long it's been tracked. In Carpenter's case, someone was tracked for 7 days without a warrant, while in Almonor, it was only 6 hours. Additionally, the EFF post suggests that this was a much more targeted search (one for specific suspects only) than the one in Carpenter. As much as I dislike the idea of warrantless phone tracking, since Roberts crossed over to vote with the liberals on the side of a narrow majority on Carpenter, there's a decent chance this might get overturned on appeal. [1] https://www.scotusblog.com/2018/06/opinion-analysis-court-holds-that-police-will-generally-need-a-warrant-for-cellphone-location-information/ https://www.scotusblog.com/2018/06/opinion-analysis-court-ho...
- tonyztan 7y ago
  It appears this ruling is based on the Massachusetts State Constitution, not the U.S. Constitution. States are allowed to have stronger protections against searches and seizures than what the 4th Amendment requires, and the U.S. Supreme Court (the only court above the MA Supreme Judicial Court) is unlikely to have the jurisdiction to interpret state constitutions. > "Although the defendant raised both federal and state constitutional claims in Almonor, the court based its decision solely on Article 14 of the Massachusetts Declaration of Rights, which was drafted before—and served as one of the models for—our federal Bill of Rights. Article 14, one of the cornerstones of the Massachusetts Constitution, is the state’s equivalent to the Fourth Amendment. As the court notes, it 'does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States.'" (From original article.) > "the U.S. Supreme Court may hear appeals from state supreme courts only if there is a question of law under the United States Constitution (which includes issues arising from federal treaties, statutes, or regulations), and those appeals are heard at the Court's sole discretion (that is, only if the Court grants a petition for writ of certiorari)." (https://en.wikipedia.org/wiki/State_supreme_court#Influence_of_the_federal_Supreme_Court_on_the_state_supreme_courts https://en.wikipedia.org/wiki/State_supreme_court#Influence_...)
  - phsource 7y ago
    Ah, that makes a lot of sense! I missed that part of the article. It sounds like the decision is safe in Massachusetts, then!
0xADEADBEE 7y ago
As well they should; it sounds objectively like an abuse of privacy. I don't much care for Google's Sensorvault DB [0] either but at least it's not (AIUI) real-time and completely unfettered. It'll be interesting to see if projects like that are considered unethical in a few years too along the same grounds. [0] https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html https://www.nytimes.com/interactive/2019/04/13/us/google-loc...
makeramen 7y ago
Am I the only one surprised that this is allowed in the first place? What established practices/precedent does the state have that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old"? That seems like precisely the information that should require a warrant, no?
- CPLX 7y ago
  To shorthand the basic principle, you’re only promised privacy for your personal papers. Since this info is shared with a third party (the phone company) it’s no longer considered private. Of course that’s problematic but that’s the basic concept.
  - giancarlostoro 7y ago
    If they dont make it public to everyone they shouldnt plainly make it public to the government. In an age of identity theft and smarter high tech criminals this sort of data should be on lockdown and under scrutiny for access.
  - Taniwha 7y ago
    But it's not shared with the phone company - this case is about pinging a phone to make it give up its GPS location
    - Bartweiss 7y ago
      That's a key question for this case, yeah. United States v. Graham held, with significant controversy, that obtaining historical location data from a phone company is shared with a third party and so lacks 4th Amendment protection. But the Massachusetts court finding for this case centered on the ping; law enforcement can't ask third parties to conduct specific searches in its place, which was effectively what they did here. (Similarly, there's a standing case about the FBI use of paid GeekSquad informants which hinges on whether they were being paid for discoveries in the course of work, or implicitly hired to conduct searches.) That said, two judges here held that even if the Fourth Amendment doesn't protect location data, the Massachusetts constitution does. So once the targeted-request program ends, we may see this question revisited.
drawnwren 7y ago
It sounds dystopian, but I'm not really sure I disagree with the government here. We allow our personal data (to include real time location) to be collected and sold on third party exchanges. I'm not sure there is a strong argument for the government needing a warrant to access the data given how freely we already disseminate it. The solution would be to not disseminate it, but we, as a collective, have agreed to not make privacy a concern so far. The biggest irony of all is, as we saw with gdpr, most hn users are nominally for privacy until regulation is implemented and we realize that we(most programmers) are the people making a living off of the current state of privacy.
- rconti 7y ago
  It's interesting how textualism/originalism vs the constitution as a "living document" plays out. Of course a conservative interpretation of the constitution might say "the right to bear arms includes rocket launchers" where a liberal one might say "the founders could not have imagined such a weapon". In the same way, one could say "if you don't want to be tracked, don't carry a tracking device on you at all times", where a more liberal interpretation might be "the framers could not have imagined such an ubiquitous and useful device, and it's not reasonable to have to sacrifice modern convenience to maintain the privacy we thought we were guaranteed". And depending on the issue at stake, a more liberal or more conservative view might give you greater rights.
  - drawnwren 7y ago
    I don't think that applies here. I'm specifically not saying that producing data makes it public. Rather I'm saying allowing a third party to resell your data with impunity necessarily obviates your ability to control the dissemination. If you've given control of your data to a third party, you have no control. Full stop.
    - Reelin 7y ago
      > If you've given control of your data to a third party, you have no control. Full stop. Given the current state of affairs, doesn't that effectively amount to not carrying a cell phone if you don't want to be tracked? It's not reasonable to assume that I opted in to sharing my data given that no realistic alternative is available to me. I do see your point though - if third party exchanges dealing in such data are legal, then why can't the government use it? It does seem inconsistent.
wpdev_63 7y ago
Does this include the FBI/Fusion centers?
- jkaplowitz 7y ago
  The ruling was based on the MA state constitution, so it probably doesn't constrain federal law enforcement agencies. But it definitely constrains MA state and local officials, whether or not they're collaborating voluntarily with the feds in a fusion center.
  - wpdev_63 7y ago
    The fact that this has to ruled upon shows how corrupt the institution is. Rand Paul 2020.
chuckschemer 7y ago
no problem. just route the request federally
dlphn___xyz 7y ago
how hard is it really to get a warrant against someone? it seems like all it takes is to create reasonable doubt and you now have the “moral highground” to violate their personal rights
- rando444 7y ago
  A law enforcement officer would first need to have probable cause, then create a sworn affidavit, then present this to a judge and if the judge agrees, a warrant is issued. Search warrants are narrowly scoped. If they find evidence of other law breaking while executing the warrant, it's inadmissible in court. (unless they witness these crimes taking place) They're only allowed to go after the crimes that they are already aware of.
  - testvox 7y ago
    That isn't really how it works. The search warrant must be narrowly scoped to only what is required to investigate the crime for which they have probable cause. However if they find evidence of other crimes while staying within the scope of the original warrant they can generally use that evidence at trial. So for instance if the police have probable cause that a wanted criminal is at your house they can get a search warrant to search it for him. If while searching they see illegal drugs on your coffee table they can use that evidence under the plain view exception. However if they open up your schoolbag and find drugs they would not be able to use that as evidence because there is no way a person can fit inside your bag so searching it couldn't have been part of the search authorized by the warrant.
OrgNet 7y ago
3rd parties (the corporations) are people, so why don't they already need a warrant to get stuff from them?
duxup 7y ago
I think we're seeing lower courts quickly coming up to speed on the ramifications of all this data. Hopefully it move up to SCOUS.
deleted 7y ago
[deleted]
tareqak 7y ago
I think we well on our way to living in a world where corporations become the enablers for surreptitious yet legal government overreach.
deleted 7y ago
[deleted]
dsfyu404ed 7y ago
MA generally holds state authority in the highest regards and likewise gives the cops tons of leeway to do whatever. That a judge in typically authoritarian state ruled to curtail police power is a pleasant surprise. I'm not complaining.
- fj39dkf 7y ago
  What a weird thing to say about Massachusetts. It has a constitution and an elected legislature, so it's definitely not an "authoritarian state". It has one of the lowest rates of police violence in the country, so I don't understand the quip about the cops either. Can you clarify?
  - dsfyu404ed 7y ago
    >It has a constitution and an elected legislature, so it's definitely not an "authoritarian state" I probably should have used the word "totalitarian". Yes, MA is a representative (some groups being much better represented than others) democracy. It still carries out the will of "the people" with an iron fist though. The people and government of MA basically worship government authority as though it is some inherent force of good in the world. When the government is doing something wrong the socially acceptable thing to do in MA is to bend over and take it. In other, less authoritarian, places it's socially acceptable to disobey the government or at least walk the line by complying with the letter instead of the intent. And by socially acceptable I mean that even the people working for the state will exercise discretion. It's kind of hard to convey in an internet comment but the people of MA kind of treat the government like people used to treat the church 200yr ago. I got chastised by a couple of my coworkers for replacing my own damn water heater (one of the state's more asinine laws is that all plumbing requires a licensed plumber), not because "OMG, it could leak" but because I disobeyed the law. I find that kind of religious devotion to the authority of the state even when it is nonsensical to be very disagreeable. >It has one of the lowest rates of police violence in the country The cops are too busy meddling in matters of economic interest to them. Also it's a fairly left state and the police aren't idiots so they know they can't get away with rampant violence. It definitively could be worse. That doesn't mean the current situation is in any way satisfactory. >I don't understand the quip about the cops either The state police has tons of influence at all levels of government so the government given a choice between something that's good for the people vs good for the police will side with the police. The only time they typically don't is when the trade-off is between the government in general vs the police. MA judged are very much known for reading political pros and cons between the letters of the law. This is is a longstanding gripe many people have. That a MA judge read the law and interpreted it to deny power to the police is an unexpected outcome.
edipurwanto 7y ago
Say ingin belajar jadi hacker Apa syarat nya
edipurwanto 7y ago
Saya ingin belajar jadi hacker apa syaratnya
luckyorlame 7y ago
this is why I donote to both the ACLU and EFF - thank you!

639 points by Elof 7y ago

givinguflac 7y ago

Another sane decision from MA courts, now we just need some of that logic to trickle up to the national level.

maxerickson 7y ago
We probably need legislation at the federal level more than a court decision.

mikece 7y ago

Small victory bit a great first step. Searches by ANY agent of the government without a warrant, even of private data brokers, that is meant for prosecution should be illegal.

phsource 7y ago

While I personally agree with the ruling, there's a good chance that it will get appealed (and potentially overturned), since US v. Carpenter, decided back in 2017, had a narrow holding. The article mentions that the EFF: > ...asked the court to recognize, as the Supreme Court did in U.S. v Carpenter, that people have a constitutional right to privacy in their physical movements. But SCOTUSblog's reporting of that decision makes it clear that [1]: > Roberts also left open the possibility that law-enforcement officials might not need a warrant to obtain cell-site location records for a shorter period of time than the seven days at issue in Carpenter’s case – which might allow them to get information about where someone was on the day of a crime, for example. There are two dimensions involved: who's being tracked, and how long it's been tracked. In Carpenter's case, someone was tracked for 7 days without a warrant, while in Almonor, it was only 6 hours. Additionally, the EFF post suggests that this was a much more targeted search (one for specific suspects only) than the one in Carpenter. As much as I dislike the idea of warrantless phone tracking, since Roberts crossed over to vote with the liberals on the side of a narrow majority on Carpenter, there's a decent chance this might get overturned on appeal. [1] https://www.scotusblog.com/2018/06/opinion-analysis-court-holds-that-police-will-generally-need-a-warrant-for-cellphone-location-information/ https://www.scotusblog.com/2018/06/opinion-analysis-court-ho...

tonyztan 7y ago
It appears this ruling is based on the Massachusetts State Constitution, not the U.S. Constitution. States are allowed to have stronger protections against searches and seizures than what the 4th Amendment requires, and the U.S. Supreme Court (the only court above the MA Supreme Judicial Court) is unlikely to have the jurisdiction to interpret state constitutions. > "Although the defendant raised both federal and state constitutional claims in Almonor, the court based its decision solely on Article 14 of the Massachusetts Declaration of Rights, which was drafted before—and served as one of the models for—our federal Bill of Rights. Article 14, one of the cornerstones of the Massachusetts Constitution, is the state’s equivalent to the Fourth Amendment. As the court notes, it 'does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States.'" (From original article.) > "the U.S. Supreme Court may hear appeals from state supreme courts only if there is a question of law under the United States Constitution (which includes issues arising from federal treaties, statutes, or regulations), and those appeals are heard at the Court's sole discretion (that is, only if the Court grants a petition for writ of certiorari)." (https://en.wikipedia.org/wiki/State_supreme_court#Influence_of_the_federal_Supreme_Court_on_the_state_supreme_courts https://en.wikipedia.org/wiki/State_supreme_court#Influence_...)
- phsource 7y ago
  Ah, that makes a lot of sense! I missed that part of the article. It sounds like the decision is safe in Massachusetts, then!

0xADEADBEE 7y ago

As well they should; it sounds objectively like an abuse of privacy. I don't much care for Google's Sensorvault DB [0] either but at least it's not (AIUI) real-time and completely unfettered. It'll be interesting to see if projects like that are considered unethical in a few years too along the same grounds. [0] https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html https://www.nytimes.com/interactive/2019/04/13/us/google-loc...

makeramen 7y ago

Am I the only one surprised that this is allowed in the first place? What established practices/precedent does the state have that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old"? That seems like precisely the information that should require a warrant, no?

CPLX 7y ago
To shorthand the basic principle, you’re only promised privacy for your personal papers. Since this info is shared with a third party (the phone company) it’s no longer considered private. Of course that’s problematic but that’s the basic concept.
- giancarlostoro 7y ago
  If they dont make it public to everyone they shouldnt plainly make it public to the government. In an age of identity theft and smarter high tech criminals this sort of data should be on lockdown and under scrutiny for access.
- Taniwha 7y ago
  But it's not shared with the phone company - this case is about pinging a phone to make it give up its GPS location
  - Bartweiss 7y ago
    That's a key question for this case, yeah. United States v. Graham held, with significant controversy, that obtaining historical location data from a phone company is shared with a third party and so lacks 4th Amendment protection. But the Massachusetts court finding for this case centered on the ping; law enforcement can't ask third parties to conduct specific searches in its place, which was effectively what they did here. (Similarly, there's a standing case about the FBI use of paid GeekSquad informants which hinges on whether they were being paid for discoveries in the course of work, or implicitly hired to conduct searches.) That said, two judges here held that even if the Fourth Amendment doesn't protect location data, the Massachusetts constitution does. So once the targeted-request program ends, we may see this question revisited.

drawnwren 7y ago

It sounds dystopian, but I'm not really sure I disagree with the government here. We allow our personal data (to include real time location) to be collected and sold on third party exchanges. I'm not sure there is a strong argument for the government needing a warrant to access the data given how freely we already disseminate it. The solution would be to not disseminate it, but we, as a collective, have agreed to not make privacy a concern so far. The biggest irony of all is, as we saw with gdpr, most hn users are nominally for privacy until regulation is implemented and we realize that we(most programmers) are the people making a living off of the current state of privacy.

rconti 7y ago
It's interesting how textualism/originalism vs the constitution as a "living document" plays out. Of course a conservative interpretation of the constitution might say "the right to bear arms includes rocket launchers" where a liberal one might say "the founders could not have imagined such a weapon". In the same way, one could say "if you don't want to be tracked, don't carry a tracking device on you at all times", where a more liberal interpretation might be "the framers could not have imagined such an ubiquitous and useful device, and it's not reasonable to have to sacrifice modern convenience to maintain the privacy we thought we were guaranteed". And depending on the issue at stake, a more liberal or more conservative view might give you greater rights.
- drawnwren 7y ago
  I don't think that applies here. I'm specifically not saying that producing data makes it public. Rather I'm saying allowing a third party to resell your data with impunity necessarily obviates your ability to control the dissemination. If you've given control of your data to a third party, you have no control. Full stop.
  - Reelin 7y ago
    > If you've given control of your data to a third party, you have no control. Full stop. Given the current state of affairs, doesn't that effectively amount to not carrying a cell phone if you don't want to be tracked? It's not reasonable to assume that I opted in to sharing my data given that no realistic alternative is available to me. I do see your point though - if third party exchanges dealing in such data are legal, then why can't the government use it? It does seem inconsistent.

wpdev_63 7y ago

Does this include the FBI/Fusion centers?

jkaplowitz 7y ago
The ruling was based on the MA state constitution, so it probably doesn't constrain federal law enforcement agencies. But it definitely constrains MA state and local officials, whether or not they're collaborating voluntarily with the feds in a fusion center.
- wpdev_63 7y ago
  The fact that this has to ruled upon shows how corrupt the institution is. Rand Paul 2020.

chuckschemer 7y ago

no problem. just route the request federally

dlphn___xyz 7y ago

how hard is it really to get a warrant against someone? it seems like all it takes is to create reasonable doubt and you now have the “moral highground” to violate their personal rights

rando444 7y ago
A law enforcement officer would first need to have probable cause, then create a sworn affidavit, then present this to a judge and if the judge agrees, a warrant is issued. Search warrants are narrowly scoped. If they find evidence of other law breaking while executing the warrant, it's inadmissible in court. (unless they witness these crimes taking place) They're only allowed to go after the crimes that they are already aware of.
- testvox 7y ago
  That isn't really how it works. The search warrant must be narrowly scoped to only what is required to investigate the crime for which they have probable cause. However if they find evidence of other crimes while staying within the scope of the original warrant they can generally use that evidence at trial. So for instance if the police have probable cause that a wanted criminal is at your house they can get a search warrant to search it for him. If while searching they see illegal drugs on your coffee table they can use that evidence under the plain view exception. However if they open up your schoolbag and find drugs they would not be able to use that as evidence because there is no way a person can fit inside your bag so searching it couldn't have been part of the search authorized by the warrant.

OrgNet 7y ago

3rd parties (the corporations) are people, so why don't they already need a warrant to get stuff from them?

duxup 7y ago

I think we're seeing lower courts quickly coming up to speed on the ramifications of all this data. Hopefully it move up to SCOUS.

deleted 7y ago

[deleted]

tareqak 7y ago

I think we well on our way to living in a world where corporations become the enablers for surreptitious yet legal government overreach.

deleted 7y ago

[deleted]

dsfyu404ed 7y ago

MA generally holds state authority in the highest regards and likewise gives the cops tons of leeway to do whatever. That a judge in typically authoritarian state ruled to curtail police power is a pleasant surprise. I'm not complaining.

fj39dkf 7y ago
What a weird thing to say about Massachusetts. It has a constitution and an elected legislature, so it's definitely not an "authoritarian state". It has one of the lowest rates of police violence in the country, so I don't understand the quip about the cops either. Can you clarify?
- dsfyu404ed 7y ago
  >It has a constitution and an elected legislature, so it's definitely not an "authoritarian state" I probably should have used the word "totalitarian". Yes, MA is a representative (some groups being much better represented than others) democracy. It still carries out the will of "the people" with an iron fist though. The people and government of MA basically worship government authority as though it is some inherent force of good in the world. When the government is doing something wrong the socially acceptable thing to do in MA is to bend over and take it. In other, less authoritarian, places it's socially acceptable to disobey the government or at least walk the line by complying with the letter instead of the intent. And by socially acceptable I mean that even the people working for the state will exercise discretion. It's kind of hard to convey in an internet comment but the people of MA kind of treat the government like people used to treat the church 200yr ago. I got chastised by a couple of my coworkers for replacing my own damn water heater (one of the state's more asinine laws is that all plumbing requires a licensed plumber), not because "OMG, it could leak" but because I disobeyed the law. I find that kind of religious devotion to the authority of the state even when it is nonsensical to be very disagreeable. >It has one of the lowest rates of police violence in the country The cops are too busy meddling in matters of economic interest to them. Also it's a fairly left state and the police aren't idiots so they know they can't get away with rampant violence. It definitively could be worse. That doesn't mean the current situation is in any way satisfactory. >I don't understand the quip about the cops either The state police has tons of influence at all levels of government so the government given a choice between something that's good for the people vs good for the police will side with the police. The only time they typically don't is when the trade-off is between the government in general vs the police. MA judged are very much known for reading political pros and cons between the letters of the law. This is is a longstanding gripe many people have. That a MA judge read the law and interpreted it to deny power to the police is an unexpected outcome.

edipurwanto 7y ago

Say ingin belajar jadi hacker Apa syarat nya

edipurwanto 7y ago

Saya ingin belajar jadi hacker apa syaratnya

luckyorlame 7y ago

this is why I donote to both the ACLU and EFF - thank you!