NJ cellphone ruling could have wider effect

AP News
Posted: Jul 19, 2013 5:14 PM

NEWARK, N.J. (AP) — Privacy experts say a court ruling in New Jersey this week on cellphone tracking could resonate beyond the state's borders.

In a unanimous ruling published Thursday stemming from a 2006 burglary case, the state's Supreme Court directed that beginning in 30 days, all law enforcement officers must get a search warrant based on probable cause if they want access to cellphone locating data. Since 2010, police have had to satisfy a lower standard of demonstrating there are "reasonable grounds" to believe the information would be relevant to an investigation.

An attorney for the California-based privacy advocacy group Electronic Frontier Foundation said it's the first time a state supreme court has ruled on that specific issue. Federal courts have split on whether cellphone users have the right to privacy in public places, but several cases are pending in federal appeals courts as well as in other state courts, according to Hanni Fakhoury.

"The ruling definitely is not binding in any state outside New Jersey, but it's persuasive," Fakhoury said Friday. "As a litigator I would tell a court, 'Look, New Jersey did it and here are the reasons for that ruling and you should adopt this.'"

Nathan Wessler, an attorney for the American Civil Liberties Union's speech, privacy and technology project, said courts addressing the issue in the future "may well look to the New Jersey opinion as one source of authority on this issue."

"Momentum in the states is toward greater protection of the privacy of our location information," he said. "Other state legislatures have considered or are now considering the issue, and we expect more states to soon require police to get a warrant before gathering private information about people's location and movements."

According to Wessler and Fakhoury, Maine and Montana are the only states where legislatures have passed laws requiring warrants.

Writing for the court Thursday, Chief Justice Stuart Rabner noted that federal courts have been divided over the issue. In some other areas, he wrote, New Jersey's constitution goes farther than the Fourth Amendment in protecting citizens from unreasonable search and seizure — particularly in previous cases involving Internet usage, bank records and hotel telephone records.

"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," Rabner wrote. "For those reasons, we have departed from federal case law that takes a different approach."

In the 2006 case, police tracked Robert Earls to a motel on Route 9 in Howell using information provided by T-Mobile about the location of a cellphone believed to be in his possession. When he opened the door to his room, police saw items they believed had been stolen and arrested him. He eventually pleaded guilty to burglary and theft.

The new warrant rule applies only to Earls' case and future cases and won't be applied retroactively. The state attorney general's office has trained county law enforcement personnel to obtain warrants for GPS-based location data since 2006, and warrants were obtained in about 85 percent of 600 cases involving cellphone location data for a six-month period last year, according to Thursday's ruling.

The attorney general's office said Thursday it will comply with the ruling.

Robert Laurino, Essex County's first assistant prosecutor, said the county already requires warrants for cellphone tracking data and that the ruling will have minimal effect.