[heading]New Jersey Supreme Court Ends Police Searches of Phone Data Sans Warrant[/heading]
A New Jersey Supreme Court on Thursday ordered that the police must require a search warrant before obtaining tracking information from cellphone providers.
The court is the first to put parameters around a practice that a national survey last year showed was routine for law enforcement, and often done without court oversight or public awareness. Lower courts had been divided on the use of cellphone tracking data, and many legal experts say the issue will likely end up before the United States Supreme Court.
Many states and Congress are considering legislation to require that warrants based on probable cause be obtained before investigators can get cellphone data. Montana recently passed such a measure, while the California Legislature approved a similar bill in 2012, though 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 had ruled in May that the police could seize a cellphone without warrant. However, a warrant was needed to search it. A case before the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. is weighing whether investigators acted legally when they received a court order, but not a warrant, to obtain 221 days of cellphone 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.”
In a unanimous decision, the New Jersey State Supreme Court said that when people entered cellphone contracts, “they can reasonably expect that their personal information will remain private.”
Th justices relied 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, according to the New Jersey justice, 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 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.
In 2012, the American Civil Liberties Union reviewed records from over 200 local police departments, large and small, and found they were aggressively using cellphone tracking data. The tactic was used to often, that many cellphone companies were issuing “surveillance fees” to police departments so as 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 provided manuals not to reveal the practice to the public, while others defended its use.
“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.