PAX Centurion - March / April 2014

www.bppa.org PAX CENTURION • March/April 2014 • Page 27 I n February 2014, the Massachusetts Supreme Judicial Court decided that a police officer must have a search warrant, supported by probable cause, in order to obtain a cell phone provider’s cell site location information. Commonwealth v. Augustine, 467 Mass. 230 (February 18, 2014). Cell site location information (CSLI) is more than just a list of num- bers called. It operates as a tracking device, because it shows the defen- dant’s location at the time he made or received a call, or the time the call came in, even if the defendant did not answer the phone. Cellular phone providers have a network of base station or cell towers, which divide the provider’s coverage area into sectors. Cell phones send signals that indi- cate which sector the phone is in when the call was made. As cell phone use expands, the providers continually add more cell towers to handle the demand for service, and the sectors are becoming increasingly smaller. It is thus possible to locate a call within a small area, giving increasingly specific information about the caller’s location. The officers in this case did not obtain a warrant for the records, but they did obtain a court order under 18 U.S.C. Section 2703. A court order under 18 U.S.C. Section 2703(d) will be issued if the government offers “specific and articulable facts” showing that there are “reasonable grounds to believe” that the records are “relevant and material to an on- going criminal investigation.” This is con- sidered to be a “reasonable suspicion” standard, and is less than the probable cause necessary for a warrant. The court held that the court order was not sufficient, and that the of- ficers needed a warrant. The court decided that the defendant had an “expectation of privacy” in the CSLI con- tained within his phone records. The government had argued that cell phone records were like bank records, which a person voluntarily hands over to the bank and its employees and thus know will not be held in confidence, or numbers dialed on a home phone, which the caller knows the phone company has in order to connect the call. Although the court agreed that CSLI is a “third-party business record,” for which probable cause is generally not required under federal standards, the court applied the more protective standard under Article 14 of the Massachusetts Constitution (“the Massachusetts Declaration of Rights”) and found that the defendant had a reasonable expectation of privacy in his CSLI data because of the “character of cel- lular telephone use in our current society.” The court said that cell phones had become “an indispensable part of modern life,” noting that many families forego land lines in favor of their cell phones. Cell phones are “increasingly viewed as necessary to social interactions as well as the conduct of business …more importantly, cellular telephones accompany their users everywhere – almost permanent attachments to their bodies.” The court also noted a previous U.S. Supreme Court decision that the police would need a warrant to obtain GPS records, stating that, “the government’s contemporaneous electronic monitoring of one’s com- ings and goings in public places invades one’s reasonable expectation of privacy.” The court went on to say that, because of the nature of cell phone use, CSLI “raises even greater privacy concerns than a GPS track- ing device” because cell phone records indicate where a person’s body Cell phone privacy Legal Notes: Leigh A. Panettiere, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association is physically located at all times, not just his car. “People buy cellular telephones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cellular telephone to share detailed information about their whereabouts with the police.” What does this mean for collective bargaining over the rights of police officers to privacy in their own cell phones? The Supreme Court stated in O’Connor v. Ortega, 480 U.S. 709 (1987) that, “individuals do not lose FourthAmendment rights merely because they work for the government instead of a private employer, [but] special needs beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable for govern- ment employers.” The courts analyze FourthAmendment claims accord- ing to the “operational realities of the workplace” and “the standard of reasonableness under all the circumstances.” The U.S. Supreme Court held in City of Ontario v. Quon, 560 U.S. 746 (2010) that a public employer was justified in reviewing the content of text messages sent by pagers supplied by a public employer to its police officers to determine if the officers were engaging in excessive personal use of the pagers. The City obtained the content of the mes- sages from the pager service, not from the officer, and disciplined him after finding that he had sent personal text messages while on duty. The court accepted the employer’s argument that the search was reasonable because it was conducted so that the employer could determine whether the charac- ter limit on the city’s contract with the pager service was sufficient to meet the city’s needs. The court went on to hold that the city had a legitimate inter- est in investigating whether the employees were being required to pay out of pocket for busi- ness communications, or the city was paying for personal communications. The First Circuit U.S. Court of Appeals decided in Haggins v. Verizon New England, 648 F. 3d 50 (1 st Cir. 2011), that whether Verizon could monitor employees’ company-issued cell phone use (and the cell phone’s tracking function) depended on collective bargaining between the par- ties. The court decided the case under the Massachusetts Declaration of Rights and the state privacy statute, M.G.L. c. 214 Section 1B, and held that the employees’ state law privacy claims were pre-empted by the Na- tional Labor Relations Act. The court stated that, in determining whether an employer’s action is a violation, “the employer’s legitimate interests in determining the employees’ effectiveness in their jobs should be bal- anced against the seriousness of the intrusion on the employees’ privacy.” The court found that, to determine whether an employer can intrude on the employees’ privacy rights requires a review of industry practices, and thus depends on the parties’ collective bargaining agreement. In private employment settings, the NLRB holds that cell phone poli- cies are mandatory subjects of bargaining. Warren Unilube, Inc., 358 NLRB No. 92 (July 31, 2012). The law on public employee use of pri- vate cell phones has evolved over the years. The Massachusetts Depart- ment of Labor Relations held as far back as 2002 that a rule prohibiting See Cell Phone on page 28