New Jersey toughens rules for phone data searches

Police officers in the state of New Jersey will now require a judge’s signature on a search warrant if they want to obtain the sensitive location details emitted from the cell phones of criminal suspects.

The state Supreme Court ruled unanimously Thursday in a 7-0 vote that law enforcement agents in New Jersey need warrants in future cases when they want cell phone companies to hand over location data.

Until now, Montana was the only other state in the US that required a warrant in order to compel a telecom for location data. In most locales, law enforcement agents need merely a court order, not a warrant, which requires an officer of the law to only demonstrate that there is “reasonable grounds” that such information would aid in an investigation. Starting 30 days from this week’s ruling, however, police in New Jersey will need to prove probable cause.

The ruling does not apply specifically to GPS figures, but rather the data that’s compiled by telephone companies when they regularly “ping” the phones of customers. By reviewing that information, investigators can often track a suspect down to within a few feet of their location.

Last January, the United States Supreme Court ruled that tracking the information broadcast by a Global Positioning System device constitutes the type of search protected against in the US Constitution.

Prior to that, the US court of Appeals for the DC Circuit ruled, “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

In this week’s ruling, the state judges cited New Jersey’s local Constitution, which provides privacy protections more comprehensive than the ones existing on a federal level. The state Supreme Court said that the local Constitution allows New Jerseys residents an expectation of privacy from the government, even when sensitive data is first sent to third-parties, such as a telecom.

“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 ... with whom they choose to associate," Chief Justice Stuart Rabner wrote in his finding. "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."

Peter G. Verniero, a former New Jersey attorney general and State Supreme Court justice, told the New York Times that “This type of issue will play out in many jurisdictions for the simple reason that cellphones are so prevalent in daily life.”

“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 decision affects just about everybody,” Verniero said.

At least in Jersey, that is. Aside from the legislation passed earlier this year in Montana, law enforcement agency elsewhere need only to say information is relevant to an investigation in order to ask telecoms to turn over figures.

“The majority of state legislatures have adjourned for the year, but we hope they’ll follow Montana’s lead when they take up location tracking next session,” American Civil Liberties Union advocacy and policy strategist Allie Bohm wrote last month.