Clinic at the SJC: Arguments on Location Privacy and Free Speech

Yesterday was a busy day before the Supreme Judicial Court in Massachusetts (SJC), as the Court heard arguments in Commonwealth v. Estabrook and Commonwealth v. Lucas. The Cyberlaw Clinic filed amicus briefs in both cases. Clinic students Naomi Gilens (JD ’16) and Sandra Hanian (JD ’15) attended the arguments on Thursday, along with Clinical Instructor Vivek Krishnamurthy and Clinical Fellow Andy Sellars.

Estabrook – in which the Clinic filed a brief on behalf of the ACLU of Massachusetts and the Electronic Frontier Foundation – concerns cell phones and location privacy. As we noted in our earlier blog post, cell phones track the location of users as part of their basic function. After the SJC’s decision in Commonwealth v. Augustine, law enforcement in Massachusetts generally has needed a warrant in order to obtain that information as part of a criminal investigation. Estabrook concerns whether, based on some of the language in Augustine, law enforcement does not need a warrant for a “brief period” of location information. In Estabrook, law enforcement obtained two weeks of cellphone location information, but now the state seeks to use only six hours of that data in its prosecution.

In our brief, the amici argued that Augustine requires police to get a warrant in a case like this, even if they plan to use a small amount, and that a blanket warrant requirement is best suited to avoiding confusion in the lower courts. As the brief mentioned, to rule the other way would suggest that law enforcement could obtain years of location information from cellphone companies without a warrant, so long as they only used a small part of that information. During argument, the Court cited this example specifically, and also vigorously debated who should have standing to challenge warrantless searches, and whether under the facts of Estabrook the evidence should be excluded if the court finds that the Fourth Amendment or the Massachusetts analogue were violated.

Immediately following Estabrook, the Court considered the case of Commonwealth v. Lucas. Our prior blog post on Lucas gives some background on the case, where the Clinic filed a brief on behalf of the New England First Amendment Coalition, the parent company of the Boston Globe, the parent company of WCVB-TV Channel 5, the Massachusetts Newspaper Publishers Association, the New England Newspaper and Press Association, Inc., and the New England Society of Newspaper Editors. Lucas concerns a rarely-used statute that criminalizes false statements made concerning a candidate or ballot question. A criminal defendant who filed a mailer in the last state legislative election accusing a representative of helping sex offenders brought a challenge to the statute under the First Amendment and Article 16 of the Massachusetts Declaration of Rights.

In our brief, the amici argued that the statute is unconstitutional in light of recent Supreme Court precedent, incentivizes candidates to use criminal law for partisan gain, and that counterspeech is the better remedy for correcting mistruths around election speech. The Court extensively discussed these and other topics, including how striking such statutes would implicate statutes on fraud, defamation, or lying to public officers, and whether this statute can actually serve its stated goal when a legal case would likely reach a verdict months after an election ended.

The oral arguments in both cases were recorded and should be made available on Suffolk Law’s archive of SJC arguments. We will update the blog when the Court issues its decisions.

Photo of the John Adams Courthouse care of Flickr user cmh231fl, and licensed under a Creative Commons Attribution Noncommercial 2.0 license.