New Jersey Supreme Court Restricts Police Searches of Phone Data

An anonymous reader sends this quote from the NY Times: "Staking out new ground in the noisy debate about technology and privacy in law enforcement, the New Jersey Supreme Court on Thursday ordered that the police will now have to get a search warrant before obtaining tracking information from cellphone providers. The ruling (PDF) puts the state at the forefront of efforts to define the boundaries around a law enforcement practice that a national survey last year showed was routine, and typically done without court oversight or public awareness. With lower courts divided on the use of cellphone tracking data, legal experts say, the issue is likely to end up before the United States Supreme Court. The New Jersey decision also underscores the extent of the battles over government intrusion into personal data in a quickly advancing digital age, from small town police departments to the National Security Agency's surveillance of e-mail and cellphone conversations."

Comments

I see what you did there.

[girlintraining]

You pull out an NSA. We pull out a Supreme Court ruling. THAT's the New Jersey way. You gotta problem with that buddy?

Re:I see what you did there.

[cold fjord]

A New Jersey Supreme Court ruling probably won't have much effect on the NSA.

Re:I see what you did there.

[schneidafunk]

This ruling is for the police, not the NSA.

Re:I see what you did there.

[MysteriousPreacher]

This ruling is for the police, not the NSA.

Yeah, and an important step. What we saw in the UK, regarding these "anti-terrorist" data gathering exercises was local police and government using them at the drop of a hat. At least removing them from the equation fixes part of the problem, and hopefully prevents New Jersey police from tackling car insurance cases by using the same tools applied to international terrorists.

Re:I see what you did there.

[plover]

A New Jersey Supreme Court ruling probably won't have much effect on the NSA.

No, but it might have a more direct and beneficial effect on New Jersey citizens. So far, the NSA isn't in the habit of pounding down doors at dark o'clock themselves, and they have been leaving the police work of tracking down criminals to the local police forces. This just ensures the police are following the rules.

The other good thing about this is that any police work done that follows procedures and obtains these warrants will not be challenged in court.

Re:I see what you did there.

[alen]

maybe because the NSA is a geek agency? their job is signal and electronic intelligence. not armed agents enforcing the law

Re:I see what you did there.

[girlintraining]

At least removing them from the equation fixes part of the problem, and hopefully prevents New Jersey police from tackling car insurance cases by using the same tools applied to international terrorists.

This is the right attitude. New Jersey is telling the Federal government that there are some lines you just don't cross. They can't stop them from expanding their reach and handing out privacy-invading laws and tools... but they can say no. It's called judicial restraint, and it's neither politically fashionable nor popular right now... which makes it all the more remarkable when it happens.

Re:I see what you did there.

[davester666]

Why would the cops not just get the data from the FBI/NSA instead?

The data has been legally acquired [so they claim], so surely the local police are permitted to get investigative information from the FBI.

It's like when the NSA gets the UKs secret service to spy on American's for them [and vice verse] to make it "legal", only on a more local scale.

Re:I see what you did there.

[sjames]

Irrelevant. The fact remains that they depend on police to do the physical work and those police WILL be affected by the NJ Supreme Court in the state of NJ.

All the NSA guys can do is sputter impotently if the police won't act.

Re: I see what you did there.

[Anonymous Coward]

The NSA does SIGINT, not police work, they provide a service to other agencies.

You are reversing their role with law enforcement agencies... Because you dislike them apparently. It's sad.

Re: I see what you did there.

[Anonymous Coward]

Evidence admissibility.

-*DUuuuuuuuuuH*-

Re: I see what you did there.

[sjames]

I guess you're not getting it. They are impotent if no police can act on their SIGINT.

Re: I see what you did there.

[davester666]

So, you are claiming that evidence legally obtained by the FBI isn't admissible in State court?

It does need an exception

[afidel]

There has to obviously be an exception to the rule to allow for exigent circumstances, like when someone is kidnapped or they are trying to locate an active shooter.

Re:It does need an exception

[gl4ss]

There has to obviously be an exception to the rule to allow for exigent circumstances, like when someone is kidnapped or they are trying to locate an active shooter.

well.. that's the same as not needing a warrant for entering a house a shooter is shooting from I suppose. you're already going to arrest the guy in those cases too, regardless of what the tracking will tell you.

Re:It does need an exception

[MysteriousPreacher]

There has to obviously be an exception to the rule to allow for exigent circumstances, like when someone is kidnapped or they are trying to locate an active shooter.

Definitely - this comes down to probable cause.

http://en.wikipedia.org/wiki/Probable_cause

It should be very specific and justified, which is something that needs to be permissible. What needs to go away are the fishing expeditions and general riffling through personal data for persons where there is no probable cause. Probable cause shouldn't even require a warrant if there's an immediate threat. However it should only apply when there are criminal charges in mind, and a suspect. i.e. tracking a kidnap victims cellphone is demonstrably different to pulling phone location for people without reasonable grounds to consider criminal charges against these particular people.

Privacy expectations aside, it's not too difficult to build up a solid list of criteria under which it would be reasonable to pry. For one, firemen don't get charged with breaking and entering when they kick down a door to search a burning house. It's quite clear though that this doesn't mean fireman can go kick down the door of any given house without reason to suspect a fire or similar emergency within their remit.

Re:It does need an exception

[Anonymous Coward]

There has to obviously be an exception to the rule to allow for exigent circumstances

No, there doesn't. Just because my "papers" are now "on a cellphone", that doesn't mean we throw out all the rules regarding literal papers stored in a briefcase, and introduce a whole new set of less stringent rules that grant the government far more access than they had with literal papers stored in a briefcase.

I really, really hope you did not mean that the way I interpreted it.

Re:It does need an exception

[Hatta]

Exigent circumstances do not eliminate the need for probable cause. They only save you time standing in front of a judge. If there is no probable cause, anything you found during your search is inadmissible in court.

NJ joins CA as a Republik

[Ora*DBA]

It's a stealth thing, but NJ has become the most left-leaning justice system in the country; more so than Cali if one reads the decisions. They have a large, predominantly low-income, urban population and lots of judges in affluent suburban counties, so one would think they would go conservative, but the opposite is true. Must be where all the hippies moved after law school.

Heaven help you if you are a male getting divorced there. Just leave the state, or commit to shooting judges. You will be raped and left for dead.

Re:NJ joins CA as a Republik

[Hatta]

No, you'd expect low income workers to lean towards the left. Nobody needs social safety nets more than the poor. The oddity is when low income people vote Republican, which could not possibly be more against their interests. You can thank Nixon's southern strategy, and Reagan's religious rhetoric for this anomaly.

Say WHAT?

[Sparticus789]

You mean law enforcement has to follow the law? That's terrible news!

Re:Say WHAT?

[Anonymous Coward]

Damn those activist judges!

What difference does it make

[Anonymous Coward]

Here is the key to this debate. Governments today do not care about laws and will break the laws anyway. A police dispatcher in Texas once said that when a court tells the authorities to expunge someone's police record, she said that the police never expunge the record. Our justice system is a complete lawless joke.

Re:What difference does it make

[plover]

A buddy of mine has had a couple of occasions to see his criminal record. At the time, he was concerned because he had some "youthful indiscretions" that the judge ordered were to be expunged when he became an adult, and if they had come to light they probably would not have improved the situation he was in at the time.

Apparently, expunging meant taking his manila folder and sealing it shut with actual red tape that had the word "EXPUNGED" printed on it.

"Young man, this will go down on your permanent record!" - truer words were never spoken.

Re:What difference does it make

[Anonymous Coward]

Apparently, expunging meant taking his manila folder and sealing it shut with actual red tape that had the word "EXPUNGED" printed on it.

"Young man, this will go down on your permanent record!" - truer words were never spoken.

Yup, the days of Menard v. Saxbe are barely visible in the rear view mirror. The Federal and State governments have been making successful court arguments that the public interest requires them to know about any arrests you've had even if it is later proved that you were "factually innocent".

These days, in most states, all an expungement means is that the prosecutor won't see it when deciding what to charge you with and the judge won't see it when deciding bail or when deciding severity of punishment. So I guess it's still got *that* going for it.

Re:What difference does it make

[MobyDisk]

That must depend on the jurisdiction or something. In Baltimore, "expunging" means you walk out of the building with the records in a manilla folder and do whatever you want with them. Of course, who can say what other copies exist?

As Carter said, currently no functioning democracy

[Anonymous Coward]

From just a few days ago at a meeting in Atlanta,

"America has no functioning democracy at this moment" -- ex-President Carter.

As people go, I suspect he's better informed on the topic than any of us.

Re:As Carter said, currently no functioning democr

[drainbramage]

Even a blind pig can find an acorn once in a while.
Carter was on this road, he's just jealous.

Its called giving Bourbon to a Judge

[RobertLTux]

If you are a LEO and you have a judge that more or less likes you you could call said judge up AT HOME and say " sorry to bother you Sir but i have Bob coming over with a warrant you need to sign...."

with a decent E-Warrant system you wouldn't even need to have Bob go over for the sig.

Smith v. Maryland (1979) and pen registers

[Valdrax]

If this goes to the Supreme Court, I can't see this doing anything other than establishing that the police have the power to request this data without a warrant at will. Smith v. Maryland (1979) established that police do not need a warrant for pen register data (the record of who you were calling and when), because there is no reasonable expectation of privacy when you voluntarily transmit that data to a third party (the phone company). Note that this is different from the *content* of your calls -- wiretaps still require warrants, but certain metadata is free game.

Since your cell phones are effectively transmitting their location at all times over the public airwaves, I wouldn't be surprised at all if the Supreme Court will rule that you have no reasonable expectation of privacy in that data.