“Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights.” So begins the recently-issued unanimous decision of the New Jersey Supreme Court in State v. Earls, in which the Court found that “cell-phone users have a reasonable expectation of privacy in their cell-phone location information” and, therefore, under the New Jersey Constitution, “police must obtain a search warrant before accessing that information.” Coming at a time when the public’s attention is particularly focused on the tension between technology and privacy, this opinion represents a groundbreaking new rule of law on the constitutional limits of new methods of tracking and surveillance. (See also the U.S. Supreme Court’s 2011 decision in United States v. Jones and the New York Court of Appeals’ recent opinion in Cunningham v. New York State Department of Labor.) With this unprecedented decision, the New Jersey Supreme Court becomes the first state supreme court to find a constitutionally-protected privacy right in the location of a personal cell phone.
In January 2006, the Middletown Township Police Department suspected that Thomas Earls was responsible for a series of residential burglaries. After obtaining an arrest warrant, the police began searching for Earls and his girlfriend, who the police thought might be in danger because she had cooperated with the investigation. On three separate occasions on the night of January 26, the police contacted T-Mobile, Earls’ cell phone service provider, to obtain the location of Earls’ cell phone. Based on that information, the police eventually located and arrested Earls. Earls’ challenged the constitutionality of his arrest, but the Trial Court found that although he had a reasonable expectation of privacy in the location of his cell phone, the emergency aid exception to the warrant requirement applied. The Appellate Division affirmed, but it concluded that a warrant was not required because Earls did not have a constitutionally-protected privacy interest that prevented T-Mobile from disclosing the whereabouts of his cell phone to the police. Again, Earls appealed.
The New Jersey Supreme Court began its analysis by examining cell phone tracking technology, noting that “[c]ell phones register or identify themselves with nearby cell towers every seven seconds” and that this information “allows carriers to locate cell phones on a real-time basis and to reconstruct a phone’s movement from recorded data.” The Court recognized the impact that such technology can have on an individual’s personal privacy rights, observing that “details about the location of a cell phone can provide an intimate picture of one’s daily life” because cell phone location data can “disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate.” The Court opined that such tracking “involves a degree of intrusion that a reasonable person would not anticipate” and, therefore, that “the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone.” Thus, to obtain tracking information “police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement.” Because the issue was not addressed by the Appellate Division, the Court remanded the case for a determination of “whether the emergency aid doctrine applies to the facts of this case under the newly restated test.”
It remains to be seen whether other courts will follow the lead of the New Jersey Supreme Court and find a constitutionally-protected privacy interest in the location of one’s cell phone. What is certain, however, is that courts will increasingly be faced with novel legal issues arising from the conflict between new technologies and an individual’s reasonable expectation of privacy. As Chief Justice Rabner’s opinion in Earls perceptively recognizes, the answer will ultimately lie in the courts’ ability to balance the benefits that technology can provide to society against the risks to individual privacy rights.