NJ Attorney General's Office Trying To Push State Supreme Court To Overturn Precedent Requiring A Warrant To Access Phone Billing Records

from the any-expectation-of-privacy-is-still-too-much dept

Last year, the New Jersey Supreme Court upheld its state Constitution in finding that warrants were required to obtain cell phone location data. Notably, this ruling was very state-specific. The standing interpretations of New Jersey's Constitution have awarded a greater expectation of privacy than national interpretations of the Fourth Amendment.

State prosecutors aren't happy that the state of New Jersey provides greater protection for the data of its residents than the federal government, and they're hoping to drag the state's laws down to the desiccated level of today's Fourth Amendment. (Warning: registration wall.)
The New Jersey Attorney General’s office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.

Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels, in the hope that the issue will eventually percolate up to the high court, according to his June 10 memo, obtained by the New Jersey Law Journal.

Susswein said he thinks the court might be ready to overturn its holding, in State v. Hunt, 91 N.J. 338 (1982), that the warrantless search and seizure of telephone billing records, while permissible under the federal Fourth Amendment, violates the nearly identical provision of the state constitution.
It appears the Attorney General wants to take a lowest common denominator approach to civil liberties. If this reading of rights is too restrictive for the federal government, why should New Jersey prosecutors be subject to tighter guidelines? The memo portrays the warrant requirement as an "unnecessary delay," something that is supposedly harming investigations. But that assertion is completely bogus.
ACDL-NJ vice president Christopher Adams said “if the Attorney General’s office thinks the defense bar and the civil rights bar are going to stand by while they try to strip more of our rights away, they are sadly mistaken.”

Adams, a Holmdel solo, called it intellectually dishonest to say that Hunt causes delays, given that a warrant for phone records can typically be obtained within a few hours.
Defense attorneys and even judges themselves have long noted how ridiculously easy it is to obtain a warrant. Prosecutors and police constantly portray it as an arduous time sink, despite plenty of evidence otherwise. Susswein's memo is aiming to have even this minimal obstacle removed, giving New Jersey law enforcement and prosecutors the same unbounded access enjoyed elsewhere in the US, where a variety of court decisions have determined that nearly any information turned over to a third party carries no expectation of privacy.

The timing of this move could not be worse. A recent district court decision suggested warrants should be required for cell phone location data, aligning this district with New Jersey's more restrictive Constitution. Elsewhere, the battle is being fought to regain a modicum of privacy in third-party interactions, along with a pushback against warrantless surveillance in general.

This move is being viewed as the leading edge of a push for loosened restrictions on obtaining third-party data.
Assistant Public Defender Dale Jones suspected a “larger agenda” to undo the greater protections provided under the state than the federal constitution, with the memo as “the thin edge of a wedge to try and roll back a generation plus of jurisprudence that began with Hunt.”
Which is exactly how these things start. You don't just ask for access to everything without a warrant. You start with small stuff, arguing that no one has any expectation of privacy to phone numbers called or received. But is it really that unacceptable that New Jersey law enforcement will need to continue to use warrants? Is it that unimaginable that the state's citizens could be afforded slightly more protection than the rest of the nation? Apparently so. Even with all the exceptions afforded law enforcement for those times when it's just too much of a hassle to get a warrant, the State Attorney's office still feels a minimal amount of effort is too much.

The argument here revolves around phone billing records, but that's only a starting point. Sooner or later, the "wedge" stops meeting resistance, and at that point, there's very little hope that the collection of small judicial concessions that has now morphed into a cohesive, dangerous whole will ever be rolled back.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That One Guy (profile), Jun 20th, 2014 @ 6:34pm

    Almost like watching Scooby Doo villains...

    "And I would have gotten away with it too, if it weren't for the blasted paper-trail from the warrant!"

    I'd say as a rule of thumb, anyone complaining about how 'difficult' or 'time consuming' it is to follow the law and get a warrant before performing a search is pretty much flat out admitting that their actions, or desired actions, would not be able to stand up under legal scrutiny, and they know it.

     

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

  2.  
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    Anonymous Coward, Jun 20th, 2014 @ 7:08pm

    No Surprises Here

    Considering that Gov Christie outed himself as an NSA apologist last summer. Forget "Bridgegate," this is the real reason that a Christie run for president would be terrifying.

     

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

  3.  
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    Anonymous Coward, Jun 20th, 2014 @ 7:13pm

    Simple flowchart:
    Are you a government (state or federal) employee?
    No -> Carry on
    Yes -> Is this decision in benefit to the people?
    Yes ->Carry on
    No -> Resign. You're a servant of the people.

     

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

  4.  
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    Anonymous Coward, Jun 20th, 2014 @ 7:29pm

    Help wanted

    Help Wanted

    New Jersey Attorney-General seeks ethically-creative attorneys to search and seize telephone billing records in violation of the New Jersey Constitution.

    Previous coup d'etat experience not required.

     

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

  5.  
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    Anonymous Coward, Jun 21st, 2014 @ 12:35am

    Setting a precedent to overturn precedent, i wonder what other precedents might recieve some attention, maybe precedents certain abc agencies are relying on to commit overreaching authority

    Its all just so ......crap

     

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

  6.  
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    Anon E. Mous (profile), Jun 21st, 2014 @ 2:50am

    And again a faction of Government is at the ready to do whatever it can to make sure it can trample all over your rights.

     

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

  7.  
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    Personanongrata, Jun 21st, 2014 @ 4:37am

    How are New Jersey Assistant Attorney General Ronald Susswein's statements in regard to the 4th Amendment and New Jersey's Constitution consistent with his oath of office?

    New Jersey Assistant Attorney General Ronald Susswein needs to resign.

     

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

  8.  
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    Anonymous Coward, Jun 21st, 2014 @ 12:56pm

    How is this legal? Bring "test cases" where they will lose at the appellate level? The only way there could be a "test case" is if police unlawfully obtain records in violation of clear precedent and then argue the precedent should no longer apply.

     

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

  9.  
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    Anonymous Coward, Jun 22nd, 2014 @ 1:03am

    Backfiring?

    Would it be possible for this whole thing to blow up in the AG's face and getting slapped with even stricter requirements. Like not only do they need a warrant for a specific person they also need to name specific people on the other end to get it unredacted.

     

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

  10.  
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    Anonymous Coward, Jun 22nd, 2014 @ 4:14am

    Re: Almost like watching Scooby Doo villains...

    A warrant requires that you have to know which account and what evidence you are looking for to apply for one, which is a problem when you want to search everybodies phone records to discover this information.

     

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

  11.  
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    Michael, Jun 23rd, 2014 @ 7:12am

    Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels

    This should be illegal. Prosecutors should have to at least believe they have a case they can win before dragging someone into court. New Jersey tax payers should be pretty upset about this - the prosecutors office could be spending it's time a little better.

    And really, was anyone STILL looking for a reason to not go to NJ?

     

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

  12.  
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    Seegras (profile), Jun 23rd, 2014 @ 8:10am

    Attorney general wants help breaking the constitution?

    How the hell can he even propose that without thrown out of office immediately?

     

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


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