NJ Attorney General's Office Trying To Push State Supreme Court To Overturn Precedent Requiring A Warrant To Access Phone Billing Records

from the any-expectation-of-privacy-is-still-too-much dept

Last year, the New Jersey Supreme Court upheld its state Constitution in finding that warrants were required to obtain cell phone location data. Notably, this ruling was very state-specific. The standing interpretations of New Jersey's Constitution have awarded a greater expectation of privacy than national interpretations of the Fourth Amendment.

State prosecutors aren't happy that the state of New Jersey provides greater protection for the data of its residents than the federal government, and they're hoping to drag the state's laws down to the desiccated level of today's Fourth Amendment. (Warning: registration wall.)

The New Jersey Attorney General’s office is asking county prosecutors statewide for their help in overturning a 32-year-old state Supreme Court precedent that requires a warrant to obtain telephone billing records.

Assistant Attorney General Ronald Susswein wants them to bring test cases where they will likely lose at the trial and Appellate Division levels, in the hope that the issue will eventually percolate up to the high court, according to his June 10 memo, obtained by the New Jersey Law Journal.

Susswein said he thinks the court might be ready to overturn its holding, in State v. Hunt, 91 N.J. 338 (1982), that the warrantless search and seizure of telephone billing records, while permissible under the federal Fourth Amendment, violates the nearly identical provision of the state constitution.

It appears the Attorney General wants to take a lowest common denominator approach to civil liberties. If this reading of rights is too restrictive for the federal government, why should New Jersey prosecutors be subject to tighter guidelines? The memo portrays the warrant requirement as an "unnecessary delay," something that is supposedly harming investigations. But that assertion is completely bogus.

ACDL-NJ vice president Christopher Adams said “if the Attorney General’s office thinks the defense bar and the civil rights bar are going to stand by while they try to strip more of our rights away, they are sadly mistaken.”

Adams, a Holmdel solo, called it intellectually dishonest to say that Hunt causes delays, given that a warrant for phone records can typically be obtained within a few hours.

Defense attorneys and even judges themselves have long noted how ridiculously easy it is to obtain a warrant. Prosecutors and police constantly portray it as an arduous time sink, despite plenty of evidence otherwise. Susswein's memo is aiming to have even this minimal obstacle removed, giving New Jersey law enforcement and prosecutors the same unbounded access enjoyed elsewhere in the US, where a variety of court decisions have determined that nearly any information turned over to a third party carries no expectation of privacy.

The timing of this move could not be worse. A recent district court decision suggested warrants should be required for cell phone location data, aligning this district with New Jersey's more restrictive Constitution. Elsewhere, the battle is being fought to regain a modicum of privacy in third-party interactions, along with a pushback against warrantless surveillance in general.

This move is being viewed as the leading edge of a push for loosened restrictions on obtaining third-party data.

Assistant Public Defender Dale Jones suspected a “larger agenda” to undo the greater protections provided under the state than the federal constitution, with the memo as “the thin edge of a wedge to try and roll back a generation plus of jurisprudence that began with Hunt.”

Which is exactly how these things start. You don't just ask for access to everything without a warrant. You start with small stuff, arguing that no one has any expectation of privacy to phone numbers called or received. But is it really that unacceptable that New Jersey law enforcement will need to continue to use warrants? Is it that unimaginable that the state's citizens could be afforded slightly more protection than the rest of the nation? Apparently so. Even with all the exceptions afforded law enforcement for those times when it's just too much of a hassle to get a warrant, the State Attorney's office still feels a minimal amount of effort is too much.

The argument here revolves around phone billing records, but that's only a starting point. Sooner or later, the "wedge" stops meeting resistance, and at that point, there's very little hope that the collection of small judicial concessions that has now morphed into a cohesive, dangerous whole will ever be rolled back.

Filed Under: 4th amendment, attorney general, new jersey, phone records, privacy, ronald susswein, warrant