The New Jersey Supreme Court recently held that law enforcement officials must obtain a warrant before electronically tracking a suspect’s cell phone. In State v. Earls, the court stressed that users are entitled to a reasonable expectation of privacy in the level of detail cell phone data can reveal about their lives. This holding applies both to tracking using data from cell towers and tracking using GPS technology from the cell phones themselves.
The court found that cell phone owners had a reasonable expectation of privacy in the data from their phones because, “no one buys a cell phone to share detailed information . . . with the police.” Earls is the first case to establish a constitutional right to privacy in location data since the United States Supreme court decided United States v. Jones in 2012. In Jones, the Supreme Court held that the installation of a GPS tracking device on a suspect’s vehicle without a warrant was unlawful under the Fourth Amendment because it constituted a trespass onto private property.
The Earls decision echoed Justice Sotomayor’s concurrence in Jones which emphasized that the Fourth Amendment requires that police obtain a warrant whenever the government violates a subjective expectation of privacy and which suggested that a suspect has such an expectation of privacy in the GPS data from his or her vehicle. In Earls, the New Jersey Supreme Court reiterated Justice Sotomayor’s concerns over warrantless access to locational information and warned that the information gained from cell phone providers could reveal the people and groups with whom suspects were affiliated, as well as where they went and when they chose to go there.
The Earls decision goes further than Supreme Court precedent and federal law in protecting privacy rights. The information at issue in Earls came from the suspect’s cell phone service provider and cell tower data. According to the Supreme Court, the Fourth Amendment does not protect information such as spending records held by banks and calling records held by phone service providers. The United States Constitution therefore does not require a search warrant for the data at issue in Earls. However, in Earls the New Jersey Supreme Court read the New Jersey State Constitution as protecting reasonable privacy interests in such records held by third parties, and so a warrant or proof of a warrant exception is required before such records may be searched under New Jersey law.
The decision requiring warrants will only apply in Earls and in future cases, and the New Jersey Supreme Court allowed a thirty day delay in the implementation of the warrant requirement so that the New Jersey Attorney General has time to change current procedures regarding searches of cell phone data.