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Your cell phone and your privacy

By Dhar Law, LLP

Technological advances have made the world a much smaller place in terms of how people communicate with each other and conduct day to day business. Whether it is through the use of social media, or internet shopping you benefit from the advancements of modern day technology. As with anything else the modern day conveniences that you enjoy also come with a down side. You live in a world where your security and your privacy should always be at the forefront of your mind.

Generally, when people think about privacy and security, identity theft, computer hacks, and unauthorized disclosure of medical or employment records come to mind. There are many scenarios that can occur that you have probably never thought about in terms of what your rights are. The development of new technologies is fluid and ever changing which means that the laws that pertain to your privacy and security are as well.

One size does not necessarily fit all

People often fall under the false assumption that federal law is applicable in every situation, and the role that state law might play is rarely a consideration. When it comes to state’s rights in terms of the interpretation of federal law and the creation of new laws, the differences from state to state can be vastly different.

Take for example the laws that pertain to telephone recordings. In 38 states, it is legal to record a telephone conversation without the other party knowing that they are being recorded (one-party consent), however in 12 states, it is not.

Your cell phone and your privacy

Most people reasonably assume that when they are using their cell phones, their conversation and anything else associated with their phone is private, protected information. Depending on the circumstances surrounding each case, and the state reviewing it, that assumption may not be accurate depending on the type of phone that you have. The Supreme Judicial Court of Massachusetts sent down a ruling that search warrants are not required to review the call list of flip phones obtained during lawful arrests, which may not apply to smartphones.

In the specific case of Commonwealth v. Phifer, police officers arrested a drug dealer after witnessing a drug deal. The phone was then checked to obtain evidence relating calls related to recent drug deals. The Court underscored that its ruling was narrow and specific to the facts presented. The court further cited that some of the factors that could determine the outcome of future cases could depend on a different set of facts, more in-depth searches and even the complexity of the phone that is used. In the case of Commonwealth v. Berry the Supreme Judicial Court ruled that a warrant would be required if sensitive information was obtained from a GPS tracking device.

Constant GPS monitoring

In the case of Commonwealth v. Connolly, the defendant’s vehicle was searched, and cocaine was found by officers. A GPS tracking device had been installed by police officers prior to the stop and no warrant had been obtained. Connolly was convicted of cocaine trafficking after his request to suppress the evidence was denied.

His attorney appealed the decision and the Massachusetts Supreme Judicial Court ruled on September 17, 2009 that a warrant should have been required. In this case, according to Article 14 of the Massachusetts Declaration of Rights, the use and the installation of the GPS tracking unit was considered a seizure.

A judge in a similar case ruled that if probable cause could be established, the police could theoretically use GPS devices to constantly monitor any person to obtain information that could not be obtained by any other means.

Make sure your Massachusetts criminal defense lawyer knows the law

The laws pertaining to how and when the information from cell phones and GPS tracking devices is complicated. If you reside in Massachusetts and are under investigation or have been charged with a crime based on evidence obtained from your cell phone, seek aggressive legal counsel from an experienced Massachusetts criminal defense attorney. Knowledge of state and federal privacy laws is critical in these cases.


Have you or a family member been charged or arrested? It’s important not to make mistakes early on in your case. Download our PDF on the top 3 things to do to help your defense or if you have been arrested by the State Police or FBI or you are the subject of an FBI Arrest Warrant.

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Heading up the firm, Vikas Dhar is widely recognized as a leader in the New England legal community. An accomplished business litigator and a “Top 40 Under 40” criminal defense attorney, he has also been honored as a New England Super Lawyer/Rising Star in the area of White-Collar Criminal Defense for each of the past six years by Boston Magazine.

I have the power and the skill to be able to save people from themselves. I can be your guide during the darkness. I can hold your hand and navigate you out of the darkness into the light.

— Vikas Dhar
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