Our Opinion: A win in the privacy war


The Massachusetts Supreme Judicial Court’s 5-to-2 ruling Tuesday prohibiting law enforcement investigators from collecting cell phone records without first obtaining a search warrant from a state judge is a significant statement on the privacy rights of individuals in this high-tech age. The U.S. National Security Agency should take note of it.

The SJC ruling comes from a 2004 murder investigation in Malden in which investigators employed the 1986 Stored Communications Act to collect a suspect’s cell phone records to determine his whereabouts at the time of the killing. The GPS chips in phones make it easy to determine the location of the user when a call is made. The attorney for the suspect, who is still awaiting trial, argued that seizing the cell phone records without a search warrant violated Article 14 of the state Constitution prohibiting unreasonable searches and seizures. A Suffolk Superior Court ruled in favor of investigators last year.

The SJC’s two dissenters Tuesday argued that the ruling will place an undue burden on police, but prosecutors in the Suffolk district asserted that the affidavit they used to obtain the records in question had enough evidence to get a search warrant from a state judge. They failed to take that step, however, and the SJC has now made it clear to criminal investigators that they must do so from this point on.

While the SJC decision has no direct bearing on the NSA’s collecting of the phone records of millions of American citizens exposed by whistle-blower Edward Snowden, it is the latest in a growing number of statements by courts and Legislatures declaring that government does not have and should not have easy access to phone records. The constitutional right to privacy is under assault in unprecedented ways in this digital age, with the NSA’s collecting of phone data for no real reason other than it can the prime example. Good reason is needed, one that is explained in public, and that applies to everyone from criminal prosecutors to domestic spies.


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