By Paul G. Nittoly
On July 18, 2013, the New Jersey Supreme Court unanimously found a state constitutional right to privacy protecting a mobile phone user’s location data (as broadcast by a powered-on mobile device). The New Jersey Supreme Court’s decision in State v. Earls, 2013 WL 3744221 (N.J. 2013), has far-reaching implications in the criminal context, as the Court now requires law enforcement to secure a warrant before obtaining location data from wireless carriers unless there is an applicable warrant exception. This newly-articulated privacy right under New Jersey law may also impact wireless carriers, although the full extent to which remains to be seen. The State v. Earls decision can be contrasted with the recent July 30, 2013 decision of the United States Court of Appeals for the Fifth Circuit, which held that historic mobile call location data is not specifically protected by the Fourth Amendment to the United States Constitution. See In re: Application of the United States of America for Historical Cell Site Data, No. 11–20884, 2013 WL 3914484 (5th Cir. 2013). The differing outcomes from the Fifth Circuit and the New Jersey Supreme Court highlight the broader privacy protections afforded citizens by the New Jersey State Constitution.
In January 2006, the Middletown (N.J.) Police Department was investigating residential burglaries. The police believed Thomas Earls was responsible and was keeping the stolen property in a storage locker he rented with his former girlfriend, Desiree Gates. Gates led the police to the locker, in which the officers found stolen property. The next day, Gates’ cousin informed police that she had not seen Gates since Gates had assisted the police with the investigation, and that Earls, having learned of Gates’ cooperation, threatened her well-being. Earls, Slip Op. at 5-6.
The police filed a complaint against Earls and obtained an arrest warrant. During a search for Earls and Gates, the police contacted Earls’ wireless carrier, and requested the location of Earls’ mobile phone. The police did not obtain a warrant for the mobile phone location data. Earls’ wireless carrier provided this information three separate times. The location data led the police to a specific radius in which the officers ultimately located Earls’ car in the parking lot of a motel. At 3 a.m., the police called the room in which Earls and Gates were staying and asked Gates to come outside. When Earls opened the door, the police arrested him. Inside the room, the police observed several items that turned out to be stolen. Id. at 6-9.
Writing for a unanimous Court in State v. Earls, Chief Justice Rabner found that Earls had a reasonable expectation of privacy in the location data broadcast by his mobile phone, as protected by the New Jersey Constitution. Id. at 29-33. The Court plainly articulated that law enforcement must obtain a warrant based on a showing of probable cause, or qualify under an exception to the warrant requirement, in order to acquire mobile phone location information from a wireless carrier. Id. at 34. The Court held that the use of mobile phone location data “is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources.” Id. at 29. Because wireless carriers are able to pinpoint a mobile device within a very small geographic range, which can be sometimes narrowed to a particular floor or room of a building, the Court found this technological capability involves a degree of intrusion that a reasonable person would not anticipate. Moreover, the Court was concerned that tracking the location of a mobile device could provide an intimate picture of one’s daily life and reveal “not just where people go – which doctors, religious services, and stores they visit – but also the people and groups they choose to affiliate with and when they actually do so.” Id.
In light of the ubiquitous presence of mobile devices and their continuous transmission of data when powered-on, the Court held that law enforcement’s warrantless access to location data is a violation of a citizen’s reasonable expectations of privacy. “Although individuals may be generally aware that their phones can be tracked, most people do not realize the extent of modern tracking capabilities and reasonably do not expect law enforcement to convert their phones into precise, possibly continuous tracking tools.” Id. at 32.
Previously, in 2010, the New Jersey Legislature, recognizing the inherent privacy issues in mobile phones’ tracking ability, passed a statute requiring law enforcement to obtain a court order for mobile phone location information upon a showing that is less demanding than the probable cause standard for the issuance of warrants. N.J.S.A. 2A:156A-29e. The Court’s holding in Earls imposes the more rigorous probable cause standard on law enforcement before it can obtain mobile device location information from a wireless carrier. Earls, Slip Op. at 32. The Court’s ruling applies only to Defendant Earls and any future cases and takes effect thirty days from the date of the Court’s July 18, 2013 opinion. Id. at 38.
The Earls decision was premised on the broader rights conferred by the New Jersey State Constitution than are necessarily afforded by the Fourth Amendment to the United States Constitution. Shortly after the Earls decision, the United States Court of Appeals for the Fifth Circuit ruled on whether similar “historical cell site data” was protected by the Fourth Amendment to the United States Constitution – and, consequently – whether Courts considering applications filed by the United States government under the Stored Communications Act (SCA), see 18 U.S.C. §§ 2701-2712, should apply a probable cause standard. The Fifth Circuit appeal arose from three SCA applications filed by the United States for Orders requiring wireless providers to produce sixty days of historical cell site data for particular mobile phones. In re: Application of the United States of America, Slip Op. at 1. The Southern District of Texas rejected certain parts of the government’s application and held that the SCA was unconstitutional and violated the Fourth Amendment because it permitted the government to obtain location information merely based on a showing of “specific and articulable facts,” and not probable cause. Id. at 6. On appeal, in a 2 to 1 decision, a Fifth Circuit panel overturned the District Court’s decision and found no such Fourth Amendment violation. Instead, the Fifth Circuit found the SCA was not unconstitutional because the location data is monitored and stored by the wireless carriers for their own business purposes. Id. at 15, 18-24. Thus, the Court held that the data the government sought amounted to “business records” under existing Fourth Amendment jurisprudence for which the government did not need probable cause. The Fifth Circuit’s analysis struck a different tone and generally downplayed the privacy issues surrounding location data that carriers retain and which caused the New Jersey Supreme Court such deep concern. The Fifth Circuit’s determination that this location data is not entitled to Fourth Amendment protection does not diminish the significance of the New Jersey Supreme Court’s decision in Earls and has no impact on the warrant requirement imposed by the Court on local law enforcement within in its jurisdiction.
Implication for Clients
The Earls decision was limited to the criminal context and the obligations of New Jersey law enforcement when requesting mobile device location data. For criminal defendants or subjects of law enforcement investigations, this means the police must have probable cause (with limited exception) to pinpoint an individual’s location using a carrier’s continuously available location data. The New Jersey Supreme Court’s decision makes clear, however, that if one of the recognized exceptions to the warrant requirement applies, a warrant is not required. New Jersey recognizes several categories of exceptions to the warrant requirement: the “exigent” or emergency circumstances exception; the exception for when consent is given to law enforcement for the search; the exception for when evidence is in the plain view or plain smell of law enforcement; the exception for searches incident to arrest; the exceptions for searches of an automobile under certain circumstances; the exception for searches conducted by school officials and other regulatory authorities; the exception for undercover agents entering premises for the purpose of conducting business; the exception for searches conducted initially by third parties; and the exception for searches conducted out of concern for the safety of persons or property. See Miller v. Glover, No. CIV.A. 09-2891 JAP, 2012 WL 870728, at *14 (D.N.J. Mar. 14, 2012). At issue in Earls, and the subject of the New Jersey Supreme Court’s remand of the case to the Appellate Division, was whether the exigent (or emergency) circumstances exception applied to the police’s acquisition of defendant’s mobile phone location data from the wireless carrier. Earls, Slip Op. at 40. The exigent circumstances exception encompasses a number of emergency situations in which the police do not need a warrant to search: hot pursuit of a suspected felon, the possibility that evidence may be damaged or destroyed, and danger to the lives of citizens or law enforcement officers. United States v. Coles, 437 F.3d 361, 366 (3d Cir. 2006). Although further clarity from the Courts will be needed, certain of these warrant exceptions likely could not apply to the acquisition of mobile phone location data; for example, such location data would never be in a police officer’s “plain view” because it can only be obtained by law enforcement through a request to the carrier.
In addition, the Earls Court did not specifically address the impact of its decision on wireless carriers themselves. Thus, the Court did not address what burden, if any, is placed on a wireless carrier when faced with a warrantless request from New Jersey law enforcement. But, as detailed above, the decision clearly recognizes that there will be circumstances in which a warrant is not required for law enforcement to obtain the location data; e.g., during an emergency situation. Because the Court articulated that the New Jersey Constitution protects the privacy of a customer’s real-time location data, the Earls decision could also have broader implications for wireless carriers, specifically concerning how they use and disclose this type of subscriber information at least with respect to New Jersey subscribers. To the extent they do not do so already, wireless carriers should therefore treat this location information as protected Customer Proprietary Network Information (CPNI) and take steps to prevent unauthorized disclosure to third parties. Carriers may also consider updating their wireless subscriber agreements or otherwise seek subscriber consent in the event that location data is disclosed to third-party sources aside from law enforcement. The full extent of the Earls decision, including the possible extension to a civil context, remains to be seen. The fact that there have been two appellate decisions regarding the level of protection afforded mobile phone location data in such a short timeframe evidences that this is an evolving area of the law that warrants close attention. Drinker Biddle will stay abreast of any developments in this area as the Earls decision goes into effect and will inform our clients of any relevant decisions or updates in the law.
Drinker Biddle has extensive experience representing clients in the telecommunications industry. The firm counsels clients on issues relevant to a wireless carrier’s relationships with subscribers. Additionally, the firm maintains a robust white collar criminal defense and corporate investigations practice, and counsels clients on how to navigate interactions with local, state and federal law enforcement.