Cellphone Location Information Is Now Officially Private in New Jersey

Yesterday the New Jersey Supreme Court unanimously ruled that police generally need a warrant to obtain cellphone location data from wireless service providers. Responding to a challenge brought by Thomas Earls, a burglar whom Middletown police tracked by repeatedly asking T-Mobile where he was, the court emphasized the potentially sensitive nature of information about cellphone users' current and past whereabouts:

Disclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual. With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution....

We conclude that Article I, Paragraph 7 of the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone. Users are reasonably entitled to expect confidentiality in the ever-increasing level of detail that cell phones can reveal about their lives. Because of the nature of the intrusion, and the corresponding, legitimate privacy interest at stake, we hold today that police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.

Although the language of the New Jersey Constitution's privacy clause is very similar to the Fourth Amendment's, the state supreme court reads it as providing more protection. Of particular relevance in this case, the New Jersey Supreme Court has explicitly rejected the idea that information divulged to private parties for specific purposes is fair game for government snooping. Last year, concurring in U.S. v. Jones, the case in which the U.S. Supreme Court unanimously ruled that tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment, Justice Sonia Sotomayor wisely recommended reconsideration of that "third party doctrine," which has increasingly alarming implications in an age when so much personal material is stored in remote locations outside of people's homes.

The majority opinion in Jones hinged on the trespass required to attach a GPS device. But five justices also indicated that they believed the surveillance at issue in that case, which involved tracking a car's movements for a month, violated reasonable expectations of privacy. It is therefore possible that in a future case the Court will rule that warrantless cellphone tracking violates the Fourth Amendment. In the meantime, unless Congress acts, the legal constraints on the use of cellphone location data outside of New Jersey (and Montana, which requires a warrant by statute) will remain a matter of dispute. Last year an ACLU survey of law enforcement agencies found that police practices in this area vary widely, with some departments seeking warrants for cellphone data but many others demanding the information without judicial authorization.

The widespread practice of unilaterally demanding cellphone location data highlights a problem with the "reasonable expectations" test: The more warrantless surveillance the government gets away with, the less privacy people come to expect. At the extreme, when the government is monitoring your every move, you have no expectation of privacy at all, reasonable or not. Hence the longer this issue remains unresolved, the less privacy protection we are apt to get. 

Because it was announcing a new rule in State v. Earls, the New Jersey Supreme Court said the warrant requirement won't apply to past cases. It may not even make an important difference in this case, because the court said it's possible that the cops' queries to T-Mobile were covered by an emergency exception. The police said they were concerned that Earls might harm his girlfriend after discovering that she was cooperating with the cops. The case now goes back to the Appellate Division of the Superior Court for consideration of that issue.

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  • Metazoan||

    It may not even make an important difference in this case, because the court said it's possible that the cops' queries to T-Mobile were covered by an emergency exception.

    You know who else would love an emergency exception?

  • A Serious Man||

    Detroit?

  • DEATFBIRSECIA||

    Sandra Fluke? Wait, no, you said "exception".

    Sorry.

  • Pro Libertate||

    Cops, no; NSA, si?

  • Paul.||

    Si. Si Mas.

    It's entirely possible the NSA can get your location data without asking. But even if that technology is the stuff of James Bond and not really available to the NSA, they can ask for it, and force the company to keep mum about it because they'll get a FISA warrant which, to the best of my understanding has been denied zero times.

  • Caleb Turberville||

    OT: http://www.huffingtonpost.com/.....lp00000003 A judge has ruled the Detroit bankruptcy unconstitutional and ordered it withdrawn.

  • Pro Libertate||

    Can't pay my pension? Fuck you, pay me.

  • WTF||

    In other rulings, judge Aquilina ordered that blood will be squeezed from stones and repealed the law of gravity.

  • Zeb||

    Just start paying them in abandoned houses.

  • Pro Libertate||

    Excellent suggestion. At their value as assessed by the city.

  • Agammamon||

    And next up on the auction we have this wonderful fixer-upper, 800 square feet, assessed at $10,000,000. We'll start the bidding at one million, do I hear one million?

  • A Serious Man||

    Ingham County Circuit Judge Rosemarie Aquilina said that Detroit's bankruptcy filing violates the Michigan Constitution, which bans any action that threatens to cut the pension benefits of public employees, according to the Detroit Free Press.

    The parasites want every last drop of blood in the host.

  • Pro Libertate||

    Legally, the unions got their protection embedded into the state constitution. Not sure how the state can wiggle out of that, unless they're willing to repeal that provision.

  • WTF||

    The constitution could also mandate that the state be run on unicorn farts, but that wouldn't matter, either. If there's no money, there's no money.

  • Pro Libertate||

    Sure, but the state isn't supposed to be able to ignore its own constitution. I bet someone pushes through an amendment to fix this problem.

    I say that in a state that has, essentially, ignored amendments blasted through by referenda.

  • Caleb Turberville||

    Well, the pensions actually stand a better chance of getting paid if Detroit goes through bankruptcy re-organization, wouldn't they? I would think, if Detroit keeps sinking in the red, that workers would eventually never see a dime of their pension money?

  • WTF||

    Detroit and their public worker unions have obviously been out of touch with reality for a very long time.

  • Scruffy Nerfherder||

    They do not fucking care, period. They want their pound of flesh, even if it kills the host.

  • WTF||

    Although I suppose they'll care when they eventually end up holding a big bag of nuthin'.

  • Scruffy Nerfherder||

    Then it will be a tragedy, a failure of the free market.

  • WTF||

    And austerity, don't forget austerity.

  • Dweebston||

    Considering their emergency finance counsel(or whatever concatenated horseshit comprised his title) managed to score two million dollars before advising they file for chapter 9, I would guess Detroit's remaining revenue stream will be similarly piddled away on profitless ventures until it dries up entirely.

  • Zeb||

    the Michigan Constitution, which bans any action that threatens to cut the pension benefits of public employees

    Didn't seem to stop the government of Detroit from doing all the things they did to get into this situation in the first place. Seems to me that those were the actions that threatened their pensions.

  • Caleb Turberville||

    One would think.

  • WTF||

    The operative word is "think". Obviously there is little actual thinking going on in Detroit.

  • Sevo||

    "the Michigan Constitution, which bans any action that threatens to cut the pension benefits of public employees"

    If they're serious about this, there wouldn't be much government activity at all.

  • Scruffy Nerfherder||

    Well now, it seems Detroit might take the rest of the state with it.

  • Caleb Turberville||

    Upper Michigan should secede (is that a bad word around these parts?) from Lower Michigan.

  • Scruffy Nerfherder||

    Look out everybody, we've got a wanna-be slave owner over here.

  • Brett L||

    Please, the Yuppers couldn't live without the Trolls. They'd have to join Canadia.

  • Night Elf Mohawk||

    Well, it isn't Detroit's constitution.

  • Brett L||

    I think I just OD'd on Schadenfraude.

  • Brett L||

    Aquilina, a Democrat appointee, also ordered that a copy of her order be sent all the way to the White House, saying that President Obama "bailed out Detroit" and might want to take a closer look, reports the Free Press.

    Wha? I don't even know what this is supposed to mean.

  • Scruffy Nerfherder||

    Dear Barry,

    Your highness bailed out Detroit industry before and now those evil Republicans want to cheat the noble union members out of their pensions. Please send money and use this in your latest slander against the opposition.

    Sincerely,
    Judge Aquilina

  • Scruffy Nerfherder||

    Sec. 24.

    The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.

    Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities.
  • WTF||

    Aquilina, a Democrat appointee, also ordered that a copy of her order be sent all the way to the White House, saying that President Obama "bailed out Detroit" and might want to take a closer look, reports the Free Press.

    Nope, that decision was not at all motivated by politics, nosiree!

  • Pro Libertate||

    It's just an invoice.

  • Dweebston||

    The king of all unsolicited merchendise scams.

  • Metazoan||

    Aquilina, a Democrat appointee, also ordered that a copy of her order be sent all the way to the White House

    The fuck?

  • Pro Libertate||

    She also ordered that a picture of her in negligee be included on the title page.

  • Brett L||

    "Bitch set me up"

  • Fist of Etiquette||

    Responding to a challenge brought by Thomas Earls, a burglar...

    Alleged burglar.

  • Agammamon||

    ". . .or reasonably expect them to be used by the government in that way."

    So if the government *does* do this for long enough, then its reasonable for us to *expect* the government to do it? So how long before we no longer have a *reasonable* expectation that the government won't track us?

  • Zeb||

    How about this for a rule? The police can have access without a warrant to any information that I can have access to without a court order or subpoena or whatever.

  • Archduke Trousersenthusiast||

    Barry Sanders, your city needs you

  • mr lizard||

    Ya right, the same guy that bitched out on his team after getting floored by John Lynch?

  • ||

    Good court decision. I'm glad to live in a state that recognizes privacy such that cops have way less power to search and seize.

    "It may not even make an important difference in this case, because the court said it's possible that the cops' queries to T-Mobile were covered by an emergency exception."

    Exigent cases DO happen, and of course cops should have access to such data in such instances. We've used such data to locate lost/stranded hikers and people who are suicidal and stuff like that. It's great to have that resource, but like ANY police practice it is subject to abuse and needs to be carefully monitored.

    We also used it once to find a motorist that nearly died after she crashed her car and it was so hidden by foliage in the side of the roadway that nobody saw it.

    Cops have gotten away for WAY too long with just routinely getting this info w/o warrant or exigency and it clearly (imo) should be protected by the 4th amendment as unreasonable.

    People who buy cell phones have not consented to have the govt. track their whereabouts.

  • Sevo||

    "Cellphone Location Information Is Now Officially Private in New Jersey"

    So what?
    Obozo is more than willing to use A4 for toilet paper; you think some state ruling would have an effect?

  • ||

    This ruling will reign in local cops. I agree that Obama will do whatever the fuck he wants, courts and the constitution be damned

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