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EFF Asks New Jersey’s Supreme Court to Maintain State’s Commitment to Privacy

DEEPLINKS BLOG
September 10, 2015

The Attorney General’s Office of New Jersey is on a crusade to dismantle the important search and seizure protections afforded to the state’s citizens. As part of the latest assault on individual rights to due process, in State v. Lunsford, the attorney general has asked the New Jersey Supreme Court to overrule its landmark decision from 1982 in State v. Hunt that requires law enforcement to acquire a warrant to obtain an individual’s telephone billing records.

EFF has signed onto an amicus brief [.pdf] that asks the Supreme Court of New Jersey to uphold the strong privacy protections the state has in place for telephone billing records. The other participants in the brief are the ACLU of New Jersey, the Brennan Center for Justice, and New Jersey’s Office of the Public Defender.

In State v. Hunt, the Court declared that under the state’s constitution, individuals have an expectation of privacy in telephone billing records. The ruling gave New Jersey citizens stronger privacy protections and disagreed with the U.S. Supreme Court’s decision in Smith v. Maryland. Hunt rightly recognized the highly sensitive nature of these records and their potential to reveal intimate details about an individual.  As we explain in the brief, these records are incredibly sensitive:

With this data, the government can determine one’s sleep and work habits, whether one is social, and how many friends one has. It can tell whether one is ill, in need of legal advice, entangled in an extra-marital affair, looking for a new job, buying a new house, juggling child-care, or planning a vacation. The government can ascertain from a telephone bill whether one is suffering from financial hardship and the preferred methods of payment.

The New Jersey Attorney General’s arguments for lowering the standards to a grand jury subpoena, instead of a warrant, are not convincing. A subpoena does not require judicial review and a finding of probable cause in order to be issued. There’s no requirement for a particularized description of the material being sought, and allows for collection of large amounts of information by law enforcement. Subpoenas typically do not require notice to the subject, and thus an individual may not even know that their information is being sought by law enforcement.  The Attorney General wants to abandon the important privacy protection in the name of “new criminal threats” and bringing “logical consistency” to the State’s search and seizure case law.

The New Jersey state constitution, or indeed the Constitution of the United States, does not stop being a binding and important guarantor of individual rights because law enforcement feels that they can be “more efficient” if we do away with these protections. Especially given that the Attorney General’s office did not provide a single example where the state was unable to prosecute an individual due to a delay in obtaining a warrant. In addition, law enforcement’s ability to get a warrant has been dramatically sped-up where they can now apply for one electronically.

Requiring police to use a search warrant when it comes to sensitive third party records is part of a larger trend nationwide, and one that shows that the New Jersey Attorney General’s office is stuck in the past. Modern society has led to the proliferation of records with numerous third parties, and now it is more important than ever that safeguards are in place to protect privacy and due process rights.

Even federal courts are signaling a change in the way privacy expectation exists in third-party records. In her concurring opinion in United States v. Jones, U.S. Supreme Court Justice Sonia Sotomayor noted that the idea that individuals have no expectation of privacy in records turned over to third parties—also known as the “third party doctrine”—is  “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the court of carrying out mundane tasks.” Just this month in United States v. Graham, the Fourth Circuit Court of Appeals ruled the government needed a warrant to obtain historical cell site records from a cell phone company. More importantly, given that the Fourth Circuit, the Eleventh Circuit, and the Fifth Circuit have reached different conclusions regarding privacy expectations in cell site information data, the issue is ripe for review by the U.S. Supreme Court. In fact, EFF has filed an amicus brief asking the Supreme Court to grant review to hear such a case.

At a time when law enforcement has advanced technical means to conduct investigations and modern data aggregation techniques are being deployed, the New Jersey Supreme Court should renew its commitment to privacy and strengthen them further, instead of giving in to law enforcement’s demands. In his concurring opinion in Hunt, Justice Alan B. Handler stated, “Through our statutory and case law, it has been the firm policy in this State to protect the privacy of telephonic communications to the fullest extent possible.” We hope the New Jersey Supreme Court will heed these words.

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