Privacy Interests to Dominate Justice Rabner’s Tenure as Chief Justice

The U.S. Supreme Court recently ruled that police must obtain a warrant prior to searching an individual’s cell phone, even when under arrest. The sweeping privacy ruling suggests that many of the old rules don’t apply to new technology.

 In New Jersey, newly tenured Chief Justice Stuart Rabner will lead the state’s highest court as it confronts the digital age. His Court’s rulings on new technology issues such as cell phone privacy may well become their legacy.  In 2012, the New Jersey Supreme Court made national headlines when it ruled that police must obtain a warrant prior to tracking suspects using their cell phone signals.

In State v. Earls, police requested location data from a burglary suspect’s cell phone provider, without securing a warrant. The trace eventually led police to a motel, where they found the suspect in possession of stolen property. The suspect sought to suppress the evidence, arguing that law enforcement should have obtained a warrant before tracking his location via cell-tower information.

The precedential ruling, authored by the Chief Justice, was one of the first to put privacy rights ahead of preventing crime.

“Disclosure of cell-phone location information, which cell-phone users must provide to receive service, can reveal a great deal of personal information about an individual. With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also … with whom they choose to associate,” Rabner stated. “Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way. We therefore find that individuals have a reasonable expectation of privacy in the location of their cell phones under the State Constitution.”

Last month, Supreme Court Chief Justice John Roberts agreed. In very similar fashion, he wrote, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ … The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought” (referring to the passage of the Fourth Amendment).

 By the time Chief Justice Rabner reaches mandatory retirement age in 2030, flying cars may still be too far off. However, drones, government surveillance, and cloud computing are just some of high-tech privacy issues he will likely tackle during the next 15 years.

To read further on the issue of cell phone privacy, check out  Riley v. California: Police Must Obtain Warrant to Search Cell Phones on the Government and Law blog.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

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