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

[KoKo]

A Small Victory...but, good news

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.

MORE AT:

http://www.techdirt.com/articles/20130718/11492023850/nj-supreme-court-says-cops-need-warrant-to-obtain-cell-phone-location-data.shtml

[KoKo]

1. And here's another ruling in Texas from Oct. 2012:

Judge Protects Cellphone Data On 4th Amendment Grounds, Cites Government's Technological Ignorance
from the they're-RIGHTS,-not-INCONVENIENCES dept

Tim Cushing--Fri, Oct 26th 2012

Various US government agencies have spent a lot of time and energy hoping to ensnare as much cell phone data as possible without having to deal with the "barriers" erected by the Fourth Amendment. The feds, along with Los Angeles law enforcement agencies, have bypassed the protections of the Fourth Amendment by deploying roving cell phone trackers that mimic mobile phone towers. The FISA Amendments Act has been used as a "blank check" for wholesale spying on Americans and has been abused often enough that the Director of National Intelligence was forced to admit these Fourth Amendment violations publicly.

The good news is that a few of these overreaches are receiving judicial pushback. Orin Kerr at the Volokh Conspiracy has a very brief writeup of a recent shutdown of another cellphone-related fishing expedition led by an assistant US Attorney. An attempt was made to acquire records for ALL cell phones utilizing four different towers in the area of a specific crime at the time of the event. As Kerr notes, this ruling refers to the Fifth Circuit court decision that found cell phone data to be protected under the Fourth Amendment, thus requiring a warrant to access it.

Magistrate Judge Smith points out that part of the issue is that the principals involved (the assistant US Attorney and a special agent) seemed to lack essential knowledge of the underlying technology, and that this lack of knowledge prevented them from recognizing the overreach of their request:

Moreover, it is problematic that neither the assistant United States Attorney nor the special agent truly understood the technology involved in the requested applications. See In re the Application of the U.S. for an Order Authorizing the Installation and Use of a Pen Register and Trap and Trace Device, ––– F.Supp.2d ––––, 2012 WL 2120492, at *2 (S.D. Tex. June 2, 2012). Without such an understanding, they cannot appreciate the constitutional implications of their requests. They are essentially asking for a warrant in support of a very broad and invasive search affecting likely hundreds of individuals in violation of the Fourth Amendment.

There has been a lot of discussion here at Techdirt regarding the incredible lack of knowledge present in those seeking to regulate or exploit various technologies. Considering the amount of possible collateral damage and the heightened chance of rights violations, you'd think these entities would be exercising maximum caution before tampering with something they don't understand. Instead, the common approach is to use the ends (safety, crime prevention, etc.) to justify the missteps and rights-trampling of the means, leaving the judicial system and various trampled citizens to sort out the mess.

More at:
http://www.techdirt.com/blog/wireless/articles/20121024/18225920815/judge-protects-cellphone-data-4th-amendment-grounds-cites-governments-technological-ignorance.shtml