Recently the Massachusetts Supreme Judicial Court decided upon the issue of reasonable expectation of privacy of a phone user in the case of Commonwealth v. Shabazz Augustine No. SJC-11482 (PDF). Even the New Jersey’s highest court came to a similar conclusion last year when it ruled that people have a constitutional right to privacy in cell-phone location information.
The issues of privacy violation through use of technology were discussed many decades back in the United States (U.S.) at the federal level. The cases of Katz v. United States, 389 U.S. 347 (1967) (PDF) and Smith v. Maryland – 442 U.S. 735 (1979) (PDF) are few of such legal decisions that have been given by U.S. Supreme Court in this field. These decisions are binding upon all the states of the U.S.
As far as India is concerned, the cell site data location laws in India and privacy issues are still ignored by Indian law makers. The cell site location based e-surveillance in India is rampant without any regulatory checks and judicial scrutiny. We have no dedicated data protection and privacy rights laws in India. Even the Parliamentary Committee slammed Indian government for poor privacy laws in India.
In the Shabazz’s case, the Court has held that generally the Massachusetts law enforcement agencies may not track a suspect’s physical movements using cellphone data without getting a warrant. The Court held that people have a reasonable expectation that their phones won’t be used by the government to keep periodic tabs on their general whereabouts.
“Even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,” the majority opinion said.
Until the ruling, law enforcement in the state could obtain a suspect’s phone location records by showing a court that they’re relevant and material to an ongoing probe, the standard required under federal law. That’s a lower bar than a warrant, which requires police to demonstrate that they have probable cause to believe the suspect committed or is about to commit a crime.
Orin Kerr observes that the question before the court was whether the searches were consistent with the state’s Constitution and not the U.S. Constitution. “This means that the decision is binding on Massachusetts state law enforcement,” writes Mr. Kerr, “but it does not apply to federal law enforcement (whether in Massachusetts or outside it).”
On the federal side, a divided Fifth U.S. Circuit Court of Appeals panel in Louisiana ruled in July that the government may compel a cell-phone company to turn over 60 days worth of cell phone location data without establishing probable cause. The cellphone tracking issue is also pending in the Fourth and 11th Circuits, according to Matthew Segal, legal director of the ACLU Foundation of Massachusetts in Boston.
However, the tracking of an accused through cellphone would be very soon an academic discussion only as U.S. agencies are using much more sophisticated and undetectable methods to do e-surveillance. For instance, National Security Agency (NSA) of U.S has been using radio waves and malware to indulge in covert eavesdropping and e-surveillance.
Similarly, the Federal Bureau of Investigation (FBI) has been issuing the national security letters (NSLs) for long by showing national security requirements. FBI is maintaining that not only the contents of these NSLs but also the mere fact of its receipt must be kept secret by the recipient of such NSLs. It is only now that the Department of Justice (DOJ) of U.S. has announced new reporting methods for National Security Orders.
The way things are taking a shape, cell phone data location would be a method and technology of the past.