In defense of the reasonable expectation of privacy: cell phone tracking as an unreasonable search and how New Jersey got it right.

• Author: Rips, Sascha

1. INTRODUCTION II. CELL PHONE TRACKING TECHNOLOGY AND FEDERAL INTERPRETATION OF TECHNOLOGY PRIVACY RIGHTS A. Background of Cell Phone Tracking Technology B. Federal Jurisprudence on Technology Privacy Rights 1. Creating a Foundation for Technology Privacy: Olmstead v. United States 2. The Katz "Reasonable Expectation" Standard 3. Developments After Katz III. STATE V. EARLS AND NEW JERSEY JURISPRUDENCE A. State v. Earls: Reasonable Expectations of Privacy Under the New Jersey Constitution B. The New Jersey Constitution and the Argument for Stronger Privacy Protections C. The New Jersey Supreme Court's Different Approach to Unreasonable Searches and Seizures IV. ANALYSIS A. The Consumer Fraud Act and New Jersey's Special Protections Against Third-Party Businesses B. The New Jersey Supreme Court's Effort to Preserve the Katz Reasonable Expectation of Privacy on State Grounds V. CONCLUSION I. INTRODUCTION

   Recent technological innovations have provided people with many forms of technology at their fingertips. (1) Cell phones are the most common kind of technology used in everyday life. As of January 2014, 90 percent of American adults own a cell phone, and 58 percent of American adults own a smartphone. (2) With this increased use of technology comes an increased utilization of technology by government and law enforcement officers to track citizens' daily activities. (3) The question now becomes, what kind of privacy right protections can citizens expect in their private use of technology in the 21st century?

   The New Jersey Supreme Court recently held in State v. Earls that citizens have a reasonable expectation of privacy in their cell phone use and required that police obtain a warrant before accessing their cell phone location to track suspects. (4) The New Jersey Supreme Court's decision was based entirely on the New Jersey State Constitution, (5) which has historically been viewed as providing greater protections to its citizens than the United States Constitution. (6) The issue is whether the same decision could have been reached relying on federal law.

   This note considers warrantless cell phone tracking in New Jersey and whether the New Jersey State Constitution is the only means for protecting New Jersey residents from this particular privacy invasion. Part II explores the background of cell phone tracking technology and of the United States Supreme Court decisions involving privacy rights and technology. Part III looks at State v. Earls in greater detail and analyzes the New Jersey State Constitution and New Jersey Supreme Court decisions in the privacy and technology context. Part III notes cases in which the New Jersey Supreme Court's holdings departed from the United States Supreme Court on Fourth Amendment issues. Part VI looks to underlying factors that may have influenced the New Jersey Supreme Court's decision in State v. Earls, especially in regards to the reasonable expectation of privacy. Part VI examines both the New Jersey Consumer Fraud Act and recent United States Supreme Court decisions that have declined to apply Katz v. United States as factors contributing to the New Jersey Supreme Court's reliance on the state constitution and the reasonable expectation of privacy doctrine. The note concludes that, although the reasonable expectation of privacy doctrine is well established but declining under federal precedent, a person's privacy rights in their cell phone use are more sufficiently protected under New Jersey law.

2. CELL PHONE TRACKING TECHNOLOGY AND FEDERAL INTERPRETATION OF TECHNOLOGY PRIVACY RIGHTS

   1. Background of Cell Phone Tracking Technology

      Cell phone tracking can be performed in one of two ways: by triangulation technology or by GPS technology (GPS technology is only possible in GPS-enabled phones, which are usually smartphones). (7) Triangulation tracking is done by "pinging" a cell phone to determine its location. (8) When a person's cell phone is turned on, one ping occurs every seven seconds. (9) A ping also occurs anytime any information is sent to the phone (including emails, texts, data usage to browse the web, or phone calls). (10) Every time a person's phone is pinged, the phone's location is determined based on its proximity to the three (or more) nearest cell phone towers that receive its signal. (11)

      If the cell phone service provider knows the locations of these cell phone towers, it can approximate the distance between the cell phone and each tower using geometric calculations based on the lag time between when the tower sends the ping and when the cell phone responds with a ping. (12) Pinging technology can give the provider the coordinates of the cell phone within feet of its actual location. (13)

      The accuracy in locating the phone is largely based on the number of cell phone towers in a given location. (14) In more urbanized and heavily populated areas, there are generally more cell phone towers because of the increased number of people using cell phones. (15) Conversely in more rural areas, there are sometimes fewer than three phone towers within a close area, creating less accurate results when using triangulation to locate a cell phone. (16) The closer cell phone towers are to each other, the shorter the distance is between cell phones and the towers transmitting the signals, which results in a more accurate cell phone location via triangulation. (17)

      Cell phone use and the number of cell towers being installed in the United States have increased in the past few years. (18) Within three miles of downtown Newark, New Jersey's largest city, there are approximately 198 cell phone towers. (19)

      The other primary method of cell phone tracking is by GPS technology. Cell phone service providers are required by the Federal Communications Commission (FCC) to make 95% of their phones traceable by satellite or other technology. (20) Thus, cell phone companies are required to install GPS chips in almost all of the devices they sell in order to comply with regulation. (21) The GPS chip then sends a signal to a satellite with the location information of the cell phone. (22) This FCC requirement was primarily put in place to help locate an individual in the event of an emergency. (23) However, tracking still occurs regardless of whether or not the phone owner is experiencing an emergency.

      In addition to the type of self-geotagging apps like Instagram and Facebook, which can record location information by "triangulat[ion] through nearby mobile antennas and pings to random nearby Wi-Fi routers," GPS tracking works in a very similar fashion to cell phone triangulation. (24) The main difference is that, instead of relying on cell phone towers, GPS relies on the transmission of signals to 12 or more satellites orbiting the Earth. (25) The distance between the satellites and the receiver (the cell phone) is used to create overlapping spheres that intersect in a circle. (26) The resulting circle represents the cell phone's location. (27)

      What happens to this cell phone location information once it is recorded? Some might assume that with the undoubted amass of location information collected by cell phone service providers on a daily basis, this information would be discarded as not vital enough to serve any particular purpose except to take up space. However, this assumption is incorrect. (28)

      In 2010, the American Civil Liberties Union (hereinafter "ACLU") received a report from the Department of Justice detailing the data that major cell phone service providers retained from their customers and for what period of time this information was kept. (29) In the category involving the retention period for "cell towers used by phone," the results were astounding. (30) Verizon Wireless claimed to keep the information for "one rolling year," T-Mobile said they retained it for "4-6 months, really a year or more," AT&T said they retained the information "from July 2008," and Sprint and Nextel both claimed to retain the information for "18-24 months." (31) The shortest amount of time that any of the major cell phone service providers kept this information was one year. (32) There is no telling how many countless cell phone locations service providers retain for each customer, but one can only assume that a cell phone provider could practically track a customer's every movement for the duration of time that the location information was stored.

      Law enforcement officers must pay a fee to access the information about cell phone locations. (33) There is a difference in price between prospective location information and past location information. (34) For example, to receive information about a "tower dump," which gives police every phone number that uses a particular cell phone tower over a certain time period, T-Mobile charges "$150 per hour per tower." (35) But, if a law enforcement officer is requesting real-time location information tracking, T-Mobile charges $100 per day. (36) There is no question that these requests by law enforcement officers for location information from cell phone service providers have only increased in recent years. (37) In 2011, federal law enforcement made over 1.3 million requests for cell phone data. (38) Between 2011 and 2012, ACLU affiliates filed over 400 Freedom of Information Act requests asking "state and local law enforcement agencies.... about their policies, procedures, and practices for tracking cell phones." (39) New Jersey was one of the two states with the highest rate of utilizing cell phone tracking for law enforcement purposes. (40)

      The high-degree of accuracy that both triangulation technology and GPS technology can provide in locating cell phones, particularly in urban areas with numerous cell phone towers, explains why law enforcement would rely on cell phone service providers as resources in locating suspects and people of interest.

      But under what circumstances should this information be available to law enforcement? Should police...