[Vision2020] New Jersey Supreme Court Restricts Police Searches of Phone Data

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

------------------------------
July 18, 2013
New Jersey Supreme Court Restricts Police Searches of Phone Data By KATE
ZERNIKE<http://topics.nytimes.com/top/reference/timestopics/people/z/kate_zernike/index.html>

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<http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_security_agency/index.html>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<http://blogs.wsj.com/law/2013/06/21/montana-requires-warrants-for-cell-phone-tracking/>.
The California Legislature approved a similar bill in 2012, but Gov. Jerry
Brown vetoed it <http://rt.com/usa/california-privacy-bill-law-520/>,
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<http://www.abajournal.com/news/article/cops_cant_search_cellphone_seized_during_arrest_florida_supreme_court_says_/>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<http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?pagewanted=all>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<http://topics.nytimes.com/top/reference/timestopics/people/r/stuart_rabner/index.html?inline=nyt-per>.
“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<http://www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?pagewanted=all>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.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/vision2020/attachments/20130719/5fc6d259/attachment.html>