Public Records

In 2008, the provisions of G.L. c. 271, § 17B were amended to expand substantially the power of Massachusetts prosecutors to obtain information about private communications. Enacted as part of legislation addressed to preventing sexual abuse of children, St. 2008, § 205, and described by the attorney general as a tool to track online predators, the amendment of § 17B nevertheless went much further. As amended, the law allows the attorney general or a district attorney to issue an administrative subpoena for the records of certain communications service providers concerning private communications if the prosecutor has “reasonable grounds to believe that [such records] are relevant and material to an ongoing criminal investigation.” The recipient of such a subpoena is required to deliver the records to the attorney general or the district attorney within 14 days. Although the statute expressly prohibits the disclosure of the content of electronic communication, the records, which may be obtained under the statute, are capable of revealing significant amounts of information about the activities and communications of Massachusetts residents.

Section 1033 of the National Defense Authorization Act for Fiscal Year 1997, codified at 10 U.S.C. § 2576a, permits the Secretary of Defense to transfer excess Department of Defense supplies and equipment to state and local law enforcement agencies. Massachusetts has entered into an agreement with the Defense Logistics Agency, which governs the transfer of military property to Massachusetts for use in civilian policing.

State, local, and university police agencies can participate in the 1033 Program—formerly known as the 1028 Program—after completing several steps. Once a Massachusetts police agency has been approved for participation in the 1033 Program, it can requisition property. Those requisitions are done in writing and create public records. The purpose of this request was to seek those records.

In the last decade, the MBTA has undergone a fundamental change in how it operates, with the introduction of electronic fare media and the phasing out of the token system. Through the Charlie Card system, the MBTA provides riders with added convenience and benefits. It also is able to collect, store, and share information about millions of passengers, including those who use managed account services, those who purchase MBTA tickets online, and those who use a credit card to pay for a fare at a Charlie Card station. It has also been reported that the MBTA maintains data about the use of individual Charlie Cards that have been purchased with cash, although the use of such cards may not always disclose personally identifiable information.

This request concerns the ability of law enforcement agents to obtain records from cell phone companies that reveal the past or present travels of cell phone users.

Cell phone technology has given law enforcement agents the unprecedented ability to track individuals’ movements. As of December 2010, over 96 percent of the overall population of the United States carried a cell phone—an estimated 302.9 million people. Even the most basic cell phones can be tracked. Cell phones can be tracked in real time, and cell phone companies frequently retain records on the past travels of their customers.

The Constitution protects against unreasonable searches, and if the Massachusetts State Police obtains cell phone location records, the conditions under which it does so are of great public interest. The ACLU of Massachusetts believes that the Constitution does not permit law enforcement agents to track the location of cell phones without obtaining a warrant and demonstrating probable cause.

In 2010, the Executive Office of Public Safety and Security (EOPSS) announced the availability to Massachusetts law enforcement agencies of $300,000 in federal highway safety funds for the purchase of Automatic License Plate Recognition (ALPR) technology. The deadline for applications for funding was November 29, 2010. Grant awards were to have been announced in early January 2011.

It appears that a key element of that program is the collection and storage of personally identifiable information in a centralized state database that will be widely available.