NEW JERSEY - Court Restricts Searches of Phone Data

"New Jersey Supreme Court Restricts Police Searches of Phone Data" by KATE ZERNIKE, New York Times 7/18/2013

Staking out new ground in the noisy debate about technology and privacy in law enforcement, the New Jersey Supreme Court on Thursday ordered that the police will now have to get a search warrant before obtaining tracking information from cellphone providers.

The ruling puts the state at the forefront of efforts to define the boundaries around a law enforcement practice that a national survey last year showed was routine, and typically done without court oversight or public awareness.  With lower courts divided on the use of cellphone tracking data, legal experts say, the issue is likely to end up before the United States Supreme Court.

The New Jersey decision also underscores the extent of the battles over government intrusion into personal data in a quickly advancing digital age, from small town police departments to the National Security Agency’s surveillance of e-mail and cellphone conversations.

Several states and Congress are considering legislation to require that warrants based on probable cause be obtained before investigators can get cellphone data.  Montana recently became the first state to pass such a measure into law.  The California Legislature approved a similar bill in 2012, but Gov. Jerry Brown vetoed it, saying it did not “strike the right balance” between the needs of law enforcement and the rights of citizens.

The Florida Supreme Court ruled in May that the police could seize a cellphone without a warrant, but needed a warrant to search it.  And a case before the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., is weighing whether investigators acted legally when they got a court order, but not a warrant, to obtain 221 days of cellphone location data for suspects in an armed robbery case in Maryland.

“This type of issue will play out in many jurisdictions for the simple reason that cellphones are so prevalent in daily life,” said Peter G. Verniero, a former New Jersey attorney general and State Supreme Court justice.  “The decision affects just about everybody.”

“Law enforcement is trying to keep up with technology, as well they should,” he added.  “It’s very legitimate for law enforcement to use technology, but this court decision is a strong reminder that constitutional standards still apply.  The courts have to adapt, and law enforcement has to adapt.”

The ruling involved a case that began with a string of burglaries in homes in Middletown, N.J.  A court ordered the tracing of a cellphone that had been stolen from one home, which led to a man in a bar in nearby Asbury Park, who said his cousin had sold him the phone, and had been involved in burglaries.  The police then used data they got from T-Mobile to locate the suspect, Thomas W. Earls, at three points on a subsequent evening, tracking him to a motel room where he was found with a television and suitcases full of stolen goods.

In a unanimous decision, the State Supreme Court said that when people entered cellphone contracts, “they can reasonably expect that their personal information will remain private.”

The justices recognized that this departed somewhat from federal case law.  But they relied in part on a United States Supreme Court decision last year that the police could not attach a Global Positioning System to a suspect’s car without a warrant.  A cellphone, the New Jersey justices said, was like a GPS device.

“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records,” said the opinion, written by Chief Justice Stuart Rabner.  “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go — which doctors, religious services and stores they visit — but also the people and groups they choose to affiliate with.  That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”

Besides establishing a firmer legal bar for the police to obtain cellphone data, the Supreme Court also remanded the case to the appeals court to determine whether the evidence collected using the cellphone records could be admitted in court under an “emergency aid exception” to the requirement for a warrant.

Last year, the American Civil Liberties Union reviewed records from more than 200 local police departments, large and small, and found that they were aggressively using cellphone tracking data, so much so that some cellphone companies were marketing a catalog of “surveillance fees” to police departments, to track suspects or even to download text messages sent to a phone that had been turned off.  Departments were using the information for emergency and nonemergency cases.

Some departments had manuals advising officers not to reveal the practice to the public.  Others defended its use.  The police in Grand Rapids, Mich., for example, had used a cellphone locator to find a stabbing victim who was in a basement hiding from his attacker.

The law has been slow to keep up.  The Florida decision in May rejected the reasoning of a lower court that had based its approval of cellphone tracking on a 1973 United States Supreme Court case that allowed heroin found in a suspect’s cigarette pack to be introduced as evidence.  “Attempting to correlate a crumpled package of cigarettes to the cellphones of today is like comparing a one-cell organism to a human being,” the decision said.

Nationally, court decisions about cellphone tracking have considered whether it comports with the Fourth Amendment, which guards against unreasonable searches and seizures.  But the justices in New Jersey based their decision on the State Constitution, which affords greater privacy protection.  The state court has previously ruled in favor of electronic privacy.  In 2008, it said that police had to obtain a subpoena from a grand jury to obtain Internet provider records.

“The inescapable logic of this decision should be influential beyond New Jersey because it makes complete sense as to an individual’s reasonable expectation of privacy,” said Rubin Sinins, who filed a friend of the court brief on behalf of the American Civil Liberties Union and the New Jersey Association of Criminal Defense Lawyers.