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N.J. Court: Cell Phone Data Tracking Needs Warrant

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By Brett Snider, Esq. on July 22, 2013 8:40 AM

The New Jersey Supreme Court has ruled that law enforcement cannot obtain cell phone tracking information from wireless providers without a warrant.

In a unanimous decision issued Thursday, New Jersey's highest court demanded that police have a search warrant to procure sensitive cell phone data that will allow law enforcement to track an individual, reports The New York Times.

This decision is a slight change in tune from other federal rulings regarding cell phone data, but it might be a sign of a turning tide for privacy.

Expectation of Privacy in Phone Data

The New Jersey ruling strikes a new balance between law enforcement and individual privacy concerns by extending the Fourth Amendment's warrant requirement to data that has previously been considered fair game.

Generally, the Fourth Amendment only extends to areas in which someone has a reasonable expectation of privacy, which almost always includes things like the contents of your pockets but not always the contents of your trash.

Data has long been in a strange gray area when it comes to privacy. However, the New Jersey Supreme Court stated that persons who sign up for mobile contracts "can reasonably expect that their personal information will remain private," reports the Times.

Search Warrants vs. 'Trap and Trace'

While the new ruling requires law enforcement to seek a search warrant from a judge before requesting cell phone information from carriers, that doesn't mean that police had no limits to this data before.

Under federal law, federal or state law enforcement agents could apply for a "trap and trace" or "pen register" order that would allow the officers to obtain routing information from the wireless carrier that could be used to track a suspect's location.

These laws are closely related to the ones used by the NSA to obtain wireless user data from Verizon. Unlike search warrants, the orders do not need to meet probable cause standards for a court to grant them.

By requiring search warrants instead of these less demanding court orders, the New Jersey Supreme Court has raised the bar of evidence needed to obtain personal cell phone data that can be used in tracking.

Not Consistent Law

Although warrantless GPS tracking of cell phones has been struck down by the U.S. Supreme Court, lower courts are still split on the issue of whether using cell routing and site data to track cell phones requires a warrant.

While the New Jersey Supreme Court took a stand in saying this data "provide[s] an intimate picture of one's daily life" and needs protection, other states and federal circuit courts have disagreed.

This issue has not been presented to the U.S. Supreme Court, and in states other than New Jersey, law enforcement may still apply for cell phone tracking data without a warrant or probable cause.

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