In my April 2021 column, “Data Privacy: Why We Are All Over the Place,” we discussed the meaning of privacy in the digital age. We discussed in detail Commonwealth v. Pacheco, 2020 PA Super 14 (Jan. 24, 2020) and Commonwealth v. Dunkins, No. 118 MAL 2020 (petition for allowance of appeal to the Supreme Court granted Aug. 4, 2020), both of which had recently been argued before the Pennsylvania Supreme Court, both of which illustrate how the language of the Fourth Amendment and Article I, Section 8 has been stretched, or overlooked, to protect “privacy” rights not protected in the U.S. and State Constitutions. On Nov. 17, the Pennsylvania Supreme Court announced its opinion in Pacheco, and followed the Superior Court in finding that cellphone users had “privacy” rights in data not in their possession and “private” simply because one could reasonably infer from the data actions taken by the users, regardless of whether those actions took place in public or solely in the privacy of the users’ home or other private location. In this month’s article, I shall discuss the Pennsylvania Supreme Court’s actions and their ramifications,

‘Commonwealth v. Pacheco’

In 2015, the Narcotics Enforcement Team of the Montgomery County District Attorney’s Office (commonwealth), working with the Federal Drug Enforcement Agency (DEA), learned that a large Mexican drug-trafficking organization was smuggling heroin into the United States for distribution, and that Pacheco, a resident of Norristown, Pennsylvania, played a significant role in the operation by retrieving the heroin in Atlanta, Georgia, and transporting it to wholesale buyers in New York City. Throughout the nearly year-long investigation, the commonwealth applied for and obtained several orders pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. Section 5701-82. Pacheco objected to those orders obtained under 18 Pa.C.S. Section 5771-75, which allow the commonwealth to obtain an order permitting it to obtain “mobile communications tracking information.”