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.

John Minchillo/AP
A woman uses her cell phone in Lower Manhattan, New York, in June.

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.

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.

But other state and federal laws, as well as previous legal precedents, are often ill-equipped to parse the privacy status of such easy-to-glean digital data. And such information is becoming more and more the matrix of everyday life, as GPS devices are affixed to people’s hips.

“Now cellphone tracking information is so detailed that a cellphone provider can track you to your living room, or even the floor of the house you’re in, and that wasn’t possible at the time [the New Jersey] case was ongoing,” Ms. Chopin says.

Before the advent of this kind of technology, it was somewhat simpler for courts to distinguish between public and private spheres. Police have long been allowed to observe suspects in public or obtain publicly available private information without a warrant. But today’s technology is quickly blurring the lines.

“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records,” wrote Chief Justice Stuart Rabner in Thursday’s opinion. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go – which doctors, religious services and stores they visit – but also the people and groups they choose to affiliate with.”

At the same time, police have often aggressively used the digital surveillance that a phone company can instantly provide. An American Civil Liberties Union study last year found that police departments across the nation were regularly taking advantage of GPS tracking information, without court approval and often without probable cause.

“With the advance in technology, the police no longer have to surveil [suspects] themselves; they can rely upon the cellphone companies to do their surveillance for them,” says Rubin Sinins, the attorney who wrote a friend-of-the-court brief on behalf of the ACLU and argued this case before the court.

The ACLU study revealed a patchwork of policies and legal principles guiding local law enforcement’s respect for private information. Some police departments require the data only to be “relevant and material” to investigations – a bar much lower than probable cause. Other departments order the entire batch of cellphone numbers registered by GPS devices at a particular location, a practice known as a “tower dump.”

Service providers, too, have taken advantage of the blurry legal principles surrounding the privacy of customer data, some going so far as to market GPS location data to law enforcement officials, complete with a list of “surveillance fees” they will charge police to obtain it.

Maine’s new law, however, requires cellphone companies to make sure the warrants that police provide are not more than 10 days old. It also requires the companies to inform a user within three days that police have requested his or her information.

New legislation notwithstanding, the New Jersey case could help set a precedent for such location data to be included within constitutional definitions of privacy.

“In the absence of a constitutionally recognized privacy interest,” says Mr. Sinins, “there’s no disincentive for police to track people without a court order.”

You've read  of  free articles. Subscribe to continue.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.