Massachusetts SJC Holds Warrant Required for Prolonged Government Location Tracking

The Cyberlaw Clinic is pleased to report that the Massachusetts Supreme Judicial Court issued its decision this week in Commonwealth v. Rousseau, a case about whether an individual may challenge a warrant for GPS tracking of a car in which he is a passenger.  We filed an amicus brief (pdf) in the case on behalf of the Electronic Frontier Foundation, arguing that a defendant does have such standing.  The decision mirrors the reasoning advocated in the Clinic’s brief, as the SJC held that a defendant “has standing because he had a reasonable expectation that his movements would not be subjected to extended electronic surveillance by the government through use of GPS monitoring.”  Crucially, this holding means that law enforcement officers in Massachusetts must obtain a warrant prior to prolonged location tracking.

EFF’s blog post about the decision nicely explains the issues before the SJC and describes the posture of the case:

Police obtained a search warrant to install a GPS device on a car owned by a man suspected in a number of arsons throughout the state and tracked him while he drove the car with his friend and frequent passenger, Rousseau, for over 30 days. After being arrested and charged, both the owner and passenger Rousseau sought to challenge the GPS evidence, arguing that due to misrepresentations in the warrant application, the warrant was invalid. The trial court agreed the misrepresentations made the warrant invalid, but upheld the surveillance anyway, finding that neither the driver or the passenger had a reasonable expectation of privacy in their movements and that for the driver, the physical installation of the GPS device didn’t trigger state or federal constitutional scrutiny.

After the trial court’s decision in 2007, the Massachusetts Supreme Judicial Court ruled in 2009 in Commonwealth v. Connolly that the physical installation of a GPS device was a “seizure” under Article 14 of the Massachusetts constitution that required a search warrant. Then in 2012, the U.S. Supreme ruled in United States v. Jones that the physical installation of a GPS device was a “search” under the Fourth Amendment that required a search warrant. These decisions meant the driver had standing to challenge the installation of the GPS device on his car. But what about the passenger, Rousseau? Since he didn’t own the truck, these decisions didn’t determine whether he had a right of privacy in his public movements. That was the issue confronting the Massachusetts high court.

Concurring opinions in the Jones case (written by Justices Alito and Sotomayor on behalf of a total of five justices) noted that people have reasonable expectations of privacy in their public movements, meaning warrants are required before police can engage in prolonged location surveillance.  The SJC’s adoption of that reasoning represents an important step in striking a balance between the government’s interest in investigating crimes and citizens’ privacy interests in an era of increasingly high-tech surveillance tools.

Kit Walsh of the Cyberlaw Clinic worked on the brief along with fall 2012 Clinic students James Ren and Matt McCullough.

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