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Privacy Alert – New Jersey Supreme Court Requires A Warrant For Searches Of Cell Phone Data

The Supreme Court of New Jersey held that individuals have a reasonable expectation of privacy in their cell phone location data under the NJ state constitution and that “cell-phone location information, which users must provide to receive service, can reveal a great deal of personal information about an individual.”

In a turn that is becoming less and less surprising given the trailblazing nature of the New Jersey Supreme Court, the Court recently ruled in State v. Thomas W. Earls that police must obtain search warrants before obtaining the personal tracking information for alleged perpetrators from cell phone providers.  While this ruling has obvious implications for law enforcement professionals, from a broader perspective, the decision impacts — and, most importantly, protects — the privacy of individuals (and related businesses) who conduct business and their personal lives on cell phones throughout the nation.  The decision underscores a continuing battle between government intrusion into personal privacy which is increasingly in tension with the advancement of the digital age vis a vis the use of smartphones to conduct day-to-day business.  While various states throughout the country have been toying with the idea of passing legislation which would require probable cause warrants to issue before access to cell phone data is granted, the New Jersey Supreme Court’s ruling puts New Jersey at the forefront of addressing this issue.

While the facts of the case are not specifically relevant and pale in impact when compared to the implications of the decision, for completeness, the case involved burglaries in Middletown, New Jersey.  In investigating the burglaries, law enforcement officials used the data received from T-Mobile to track the stolen merchandise including a cellular phone which ultimately led to arrests of Mr. Earls.  In protecting the rights of Mr. Earls and overturning the decision of the lower courts, the New Jersey Supreme Court matter-of-factly ruled that individuals can and should “reasonably expect that their personal information will remain private” when entering into a contract with a cell phone carrier.  In explicitly recognizing a Constitutionally-based right to privacy as to the location of his or her cell phone, this decision builds on last year’s ruling by the United States Supreme Court in United States v. Jones, 615 F.3d 544 (2012).  In that case the United States Supreme Court said that the State’s/Government’s attachment of a GPS device to a vehicle and the use of that device and data to monitor a vehicle’s movements constitutes a search under the Fourth Amendment and, as such, is protected under the laws related thereto.

Given the capabilities of cell phones, the New Jersey Supreme Court declared that, in essence, a cell phone was a GPS device.  In fact, the Court went as far as to say that using a cell phone for locational purposes can “be far more revealing than  acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources”  Interestingly enough, the Court’s decision also raises the possible impact of use of the data on access to PHI (protected health information).  The suggestion is that that cell phone tracking could theoretically be used to determine when and who a patient is treating with given that the location of a medical facility is easily discernible.

This is only the tip of the iceberg.  While the Court does a reasonable job at spinning out possible scenarios where the privacy of the cell phone owner could be impacted due to intrusions on privacy without a warrant, the Court speaks in a targeted and hypothetical manner.  Though the Court attempts to temper things legally by placing an “emergency aid” exception to the use of a warrant and ultimately the fruits of the search, the possibility of mining this data should be recognized by individuals who continue to use cell phones for every aspect of their daily lives.  As cell phone (and data) use naturally increases, it will be crucial to provide tight restrictions on third-party use of cell phone information because not only will companies likely try to monetize the same, in using data in any unauthorized way, the rights and interests of privacy as a whole come into play.

OlenderFeldman LLP has significant experience dealing with privacy and business related issues which are implicated in the decision discussed above.  If you have any questions about the legal or practical implications of this case, please contact Christian Jensen, Esq. () at (908) 964-2485.