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Cellphone tracking: Police must obtain warrants, N.J. court says

State courts and legislatures are grappling with the murky legal principles governing police surveillance and privacy. One point of concern: GPS-enabled smart phones can now reveal razor-sharp details about a person’s movements.

By Staff writer / July 19, 2013

A woman uses her cell phone in Lower Manhattan, New York, in June.

John Minchillo/AP

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Highlighting once again America’s struggle with government surveillance and personal privacy in the digital age, the New Jersey Supreme Court announced “a new rule of law” on Thursday, forbidding police to obtain a suspect’s cellphone data without a warrant.

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The decision comes in the aftermath of Edward Snowden’s leak of government secrets that revealed massive government surveillance programs. Among other things, the programs allow law enforcement officials to collect “metadata” from phone companies – a practice that has just been reauthorized by a secret US court that oversees intelligence activities.

The ruling also comes at a time when state courts and legislatures across the United States are grappling with the murky legal principles governing state laws about police surveillance and privacy. Breathtaking changes in technology mean that a GPS-enabled smart phone can now reveal razor-sharp details about a person’s movements, thus quickly changing traditional notions of privacy. Technological advancements have also made it easier for local police to obtain information from service providers.

So the New Jersey court is one of the first to issue a full-throated ruling that a person’s location information is private and that police must obtain a full warrant based on probable cause before being able to obtain it.

The ruling also makes this a “right” to privacy, grounding it in the state’s constitution rather than in specific legislation.

“Litigants try to stay away from getting courts to make new law, because courts can be kind of reluctant to do so,” says Alex Chopin, a partner with Patton Boggs in Washington, D.C., and an expert in privacy law and social networking. “So I thought it was very bold that New Jersey said, we are making a new rule of law here, and explicitly said, this expectation of privacy is legitimate and law enforcement needs to follow it.”

In May, Montana Gov. Steve Bullock (D) signed the nation’s first bill that requires police to get court permission before tracking individuals with their GPS location information. And earlier this month, the legislature in Maine overrode the governor’s veto of a similar act that barred police from obtaining location information without a warrant.

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