NJ Supreme Court Says Cops Need A Warrant To Obtain Cell Phone Location Data

from the another-small-victory dept

The New Jersey Supreme Court joins a handful of other courts in deciding that law enforcement agencies need a warrant in order to obtain cell phone tracking data.

The case itself goes back to 2006, dealing with three warrantless location requests placed by police to T-Mobile. These "traces" were used to track down a suspected burglar. Once on trial, the defendant moved to suppress, which the court agreed with, stating he had a reasonable expectation to privacy in terms of his cell phone data. However, the evidence was still allowed under an "emergency aid" exception. On appeal, the court allowed him to reopen his challenge of the suppression ruling but its decision aligned itself with many others, stating he did not have a reasonable expectation to privacy for information "in plain view." This specific challenge proceeded to the state Supreme Court, resulting in this ruling.

The ruling is somewhat state-specific. The court found that, historically, New Jersey's Constitution afforded greater protection against warrantless searches than the Fourth Amendment. (This relies on previous rulings by NJ courts, as the wording is nearly identical.)

This Court has found that Article I, Paragraph 7 of the New Jersey Constitution provides greater protection against unreasonable searches and seizures than the Fourth Amendment. When people make disclosures to phone companies and other providers to use their services, they are not promoting the release of personal information to others. Instead, they can reasonably expect that their personal information will remain private.
Splitting off further from the third party doctrine claim of reduced privacy expectations, the court offered this observation.
Viewed from the perspective of a reasonable expectation of privacy, what was problematic in 2006 is plainly invasive today. We are not able to draw a fine line across that spectrum and calculate a person’s legitimate expectation of privacy with mathematical certainty –- noting each slight forward advance in technology. Courts are not adept at that task. Instead, our focus belongs on the obvious: cell phones are not meant to serve as tracking devices to locate their owners wherever they may be. People buy cell phones to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a cell phone to share detailed information about their whereabouts with the police. That was true in 2006 and is equally true today.
The court's argues that the more specific the data is, the greater the need for a warrant, and so-called metadata is surprisingly specific, especially when location data is included. Many investigative and intelligence agencies have gathered a lot of phone records by pushing the narrative that cell phone users are complicit parties in the creation of this data and therefore, willingly ceding their expectation of privacy. The New Jersey court's ruling is a strong rebuttal to that narrative.

This ruling will be effective moving forward and the court has decided not to apply the new standard retroactively. The new requirement goes into effect in 30 days, which may mean NJ telcos are in for a few last-minute fishing expeditions. The justices have kicked the case back to the appeals court and instructed it to apply the new ruling in determining whether its use of the "emergency aid" exception to allow the warrantless evidence was proper.

It may be a very venue-specific decision, but it's another small step towards restoring the expectation of privacy to cell phone users and their data.

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  1. identicon
    kog999, 18 Jul 2013 @ 2:37pm

    "The court found that, historically, New Jersey's Constitution afforded greater protection against warrantless searches than the Fourth Amendment."

    i find it insteresting that the NJ constatution could provide more protection. how much more specific can you be then

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 18 Jul 2013 @ 2:49pm


    It depends on how you define "shall not be violated", as well as "persons", "houses", "papers", and "effects".

    There's no need to redefine "right" because that hasn't meant the same thing that it used to in years.

    reply to this | link to this | view in thread ]

  3. identicon
    PacWestGuy97, 18 Jul 2013 @ 3:56pm


    Don't laws use terms as defined in legal or just plain dictionaries for the year the law was created?

    Wouldn't court's then use those year specific dictionaries to understand the definition of a term, phrase or meaning?

    If not, why not?

    reply to this | link to this | view in thread ]

  4. icon
    John Fenderson (profile), 18 Jul 2013 @ 3:59pm


    It's that pesky word "unreasonable" that causes all the trouble. Reasonableness is a subjective judgement call. That this language appears in the constitution is, in my opinion, one of the greatest flaws in the constitution.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 18 Jul 2013 @ 4:29pm

    I hate NJ it's free to enter but you're paying a toll if you want to leave.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 18 Jul 2013 @ 6:42pm

    I had no idea states had their own constitutions. I'm going to have to look into this further.

    reply to this | link to this | view in thread ]

  7. icon
    Ninja (profile), 19 Jul 2013 @ 4:06am

    Seems reasonable to me that once the data is out there it should be used in a procedure. Reminds me of some politicians in Brazil trying to overturn a judicial decision on grounds that the video evidence against them was not recorded with a warrant and thus had no value. It doesn't invalidate the fact that they were engaged in active corruption. The case is still moving.

    Still, even if it is reasonable to accept the warrantless evidence it's even more important to severely scold and punish law enforcement for not getting a warrant. The Govt loves to use the argument that getting a warrant takes time and the suspect may be able to escape but I disagree. They usually collect data for days or from days and I've seen warrants being granted in less than 30 minutes in emergencies (at least here in Brazil).

    reply to this | link to this | view in thread ]

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