The case of Commonwealth v. Josiah Zachery that is current before the Massachusetts Supreme Judicial Court raises the issue of whether there is a reasonable expectation of privacy in data from the Charlie Card, which is used to ride the commuter rails in Boston. This issue is likely to reoccur as all cards now track location, from CVS cards, to cards to reflect tolls paid in the highway.  The Massachusetts SJC heard oral argument on November 6, 2020 and a decision should follow within three to four months.

What happened in the Zachery Case?  

In February of 2015, Donte Henley and the defendant were allegedly shoveling snow with the ROCA, a non-profit program for high-risk youth that provides job training. Henley told the defendant to shoot another member of the crew, Lamour, who was a member of a rival gang. The defendant still denies the shooting and contends that there is a lack of forensic evidence against him. The shooter was described as a young, black, male wearing all black with a grey sweater. The defendant matched this description, and he was walking on the side of the road carrying a shovel. The officers determined that he matched the description and decided to check him out. He was searched for weapons, none were found, and they placed him inside the police vehicle. 

How did the police use the information from the MBTA Card?

The defendant was taken to the police station and interrogated. The police confiscated his phone and his MBTA Charlie Card. The police requested that the card be scanned, and using this data, they were able to obtain MBTA video surveillance depicting the defendant’s route on the train to the location of the shooting.  The data and video that was obtained from the Charlie Card was critical evidence leading to the defendant’s conviction.  

Expectation of Privacy under the 4th Amendment

At trial, the judge allowed the train surveillance to come into evidence, even though this search was done without a warrant. The defendant argued that for three reasons the search was unlawful under the Fourth Amendment.  

First, this was government action. The police department contacted another government entity, the MBTA, for personal information.  

Second, the defendant had a reasonable expectation of privacy. When one travels on public transportation, they are not anticipating being followed or tracked. People who rely on public transportation are overwhelmingly low income and working class. A person should not be subject to government surveillance because of their socioeconomic status. Had the defendant driven a car that same night, the police would not be allowed to track his location. 

The subjective expectation of privacy that the defendant expected is one that is accepted by society. The police officers did not even show probable cause or reasonable suspicion that the defendant was involved in criminal activity. Monitoring the comings and goings of the defendant’s personal travels infringes on a person’s reasonable expectation of privacy. There is little difference between tracking the defendant’s Charlie Card and tracking a defendant’s car or cell phone location. 

The lower court judge had two reasons for denying the defendant’s motion to suppress (1) that the Charlie card is distinguishable from CSLI information, cell phone data, because after using it to gain entry to the transit system, a person is free to ride anywhere within the transit system without detection while CSLI allows police to track an individual’s movement continuously; and (2) because the data the defendant seeks to suppress was transmitted to and stored by a third party, he had no expectation of privacy with respect to it. The defendant contends that the judge’s findings were wrong.

MBTA data and the 4th Amendment

The degree to which individuals have a reasonable expectation of privacy in surveillance was addressed by the United States Supreme Court in United States v. Jones, 132 S.Ct. 945 (2010), where the Court held that attaching a GPS device to the defendant’s vehicle was a search.  The Supreme Court has held that long-term GPS monitoring of public movement violates the reasonable expectation of privacy.  The United States Supreme Court held in Carpenter  v. United States that using cell photo location records to track a person’s location constituted a search under the Fourth Amendment, even though the cell phone records belonged to a third party, the cell phone company. The strict third party doctrine is disfavored especially at the Supreme Court level. In the digital age, most information that is personal is also owned by a third party, and it is not an appropriate standard in many emerging cases. Finally while monitoring one trip using the Charlie Card may not be a search, a cumulative nature of the information collected implicates the privacy interest of the individual. 

The issue is whether tracking someone’s location on Charlie card is similar to the surveillance the United States Supreme Court found unconstitutional in Carpenter.

In Carptenter, the Court emphasized that the Fourth Amendment protects people and not places and extends to certain expectations of privacy.  When an individual attempts to preserve something as private, and where expectation of privacy is one society deems reasonable, we have held that official intrusion into that sphere requires a warrant.

The United States Supreme Court recognized two guideposts of the 4th amendment:

1. That the amendment seeks to secure privacy against arbitrary power
2. The central of the founders is to place an obstacle to permanent police surveillance

In Carpenter, one of the issues was the scope of the data; how long it could go back.

A person does not surrender their privacy by going into the public sphere.  What one seeks to preserve as private even in areas accessible to the public may still be constitutionally protected.  Society’s expectation is that law enforcement would not monitor someone’s every movement.  These were the key concerns in Carpenter.  Cell phone data can map someone’s entire life.  The court sited statistics showing how everyone keeps one on them now.

The Masssachusetts SJC should find that an individual would not expect gov to map his location with a Charlie card any more than with a cell phone.

I think the SJC  is likely to take a middle ground.  I think the court will find that a person expectation of privacy can be violated if the surveillance is too prolonged.  The case law is concerned with Government intrusion that tracks every apexes of a persons life. It is the breath and lengths of the surveillance that the SJC may say violates the 4th Amendment.

The Supreme Judicial Court should reverse the lower court’s opinion because this warrantless search of the defendant’s whereabouts without probable cause was an infringement on the defendant’s Fourth Amendment Rights.  

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To listen to the oral argument in the Zachery case you can find it on the Suffolk University Law School Website.