Three state-level cases are primed to mold the future of mobile privacy

Three judicial cases brought to the Massachusetts Supreme Court this month will influence the enforcement of mobile data privacy cases nationwide. Other states are expected to pay close attention to the rulings, which will help clarify the intersection between traditional expectations of privacy and the fast-moving world of mobile technology.

The three cases — Commonwealth v. Almonor , Commonwealth v. Johnson and Commonwealth v. Feliz — are scheduled just months after the U.S. Supreme Court issued a groundbreaking ruling in Carpenter v. United States , deciding that law enforcement officers must obtain a search warrant before obtaining past customer location information from cell phone companies.

The scope of the Carpenter ruling is what these three cases will help determine. While the case was limited to historical location data, “it provides a roadmap for the protection of all manner of location data,” according to the American Civil Liberties Union’s Kade Crockford and Nathan Freed Wessler.

Each case that Massachusetts’ highest court will try examines an issue related to the Carpenter case. In Commonwealth v. Almonor, the court will determine whether law enforcement has a right to track real-time cell phone location data without a warrant.

The ACLU argues in it brief to the court that “electronically tracking a person’s cell phone in real time reveals locations within constitutionally protected spaces, such as homes or hotel rooms, that are normally shielded from warrantless police searches.”

Commonwealth v. Johnson will determine the right for police to extract past location data from a government database without a warrant, as they did while investigating a string of robberies. Police searched the state’s electronic monitoring database without a warrant, despite the fact that Johnson had been off probation for more than a year. The investigation resulted in his arrest, but the state’s supreme court has previously upheld Article 14 of its constitution, which states that even probation officers need judicial approval before searching probationers.

The ACLU has argued in briefs that Johnson’s constitutional rights were violated, but hasn’t issued similar briefs for the Commonwealth v. Feliz case. The nonprofit maintains, however, that the case could have a similar impact on future rulings. Feliz will determine whether the state can track the location, through ankle monitors, of all “non-contact” sex offenders for the entirety of their probation terms, even if there’s no individualized justification for doing so.

As law enforcement push for tools to ensure the public’s safety, the ACLU says “the trajectory of judicial decisions in recent years is clear: If law enforcement wants to use high-tech tools to track our physical locations, either in real time or historically, they must first get a warrant.”