State of New Jersey v Earls
- Court Permits Police Use of Phony Cell Phone Tower: A federal court in Arizona has denied a motion to suppress evidence gathered by "StingRay" surveillance technology. The court in United States v. Rigmaiden held that investigators did not violate the Fourth Amendment. The court also held that the government's use of a cell site simulator or StingRay device was supported by a "mobile tracking device" warrant. EPIC recently argued that users have a reasonable expectation of privacy in the location of their mobile devices, and has also received hundreds of pages of documents related to the FBI's use of StingRay technology. For more information, see EPIC v. FBI: StingRay and EPIC: State v. Earls. (May. 10, 2013)
- EPIC Testifies in Austin on Texas Location Privacy Bill: EPIC's Appellate Advocacy Counsel Alan Butler testified before the Texas State Assembly on a privacy bill for telephone location data. The House bill, would establish a warrant requirement for location data and a comprehensive reporting requirement, similar to the federal wiretap reports. Mr. Butler discussed the need for clear rules governing location surveillance that satisfy Fourth Amendment standards, as well as the importance of public reporting and accountability. He also testified at a Senate Committee hearing on the proposal. EPIC recently submitted amicus briefs in State v. Earls and In re U.S. (5th Cir.) regarding location privacy. For more information, see EPIC: Locational Privacy. (Mar. 28, 2013)
- EPIC Testifies Before Maryland Legislature on Location Privacy: EPIC Appellate Advocacy Counsel Alan Butler testified before the Maryland House Judiciary Committee on H.B. 887, a location privacy bill that will establish a search warrant requirement for the collection of private location information. Mr. Butler discussed the current state of location tracking and privacy under the state and federal constitutions. The Maryland bill will require a warrant for location tracking and an annual report on electronic surveillance reports, similar to the federal wiretap reports. EPIC recently submitted amicus briefs in State v. Earls and In re US regarding location privacy. For more information, see EPIC: Locational Privacy and EPIC: State v. Earls. (Feb. 28, 2013)
- EPIC to Argue for Location Privacy in NJ Supreme Court: The New Jersey Supreme Court will hear arguments on Tuesday in State v. Earls, an important case regarding the privacy of cell phone location information. At issue is whether real-time location data should be disclosed by a cell phone provider without a warrant or a court order. EPIC Appellate Advocacy Counsel Alan Butler will present oral argument along with counsel for the Defendant and amici ACLU-NJ. In response to the Court's request for supplemental briefing, EPIC's brief outlined the current state of location tracking technology and argued that cell phone users have a reasonable expectation of privacy under both the Federal and State constitutions. For more information, see EPIC: State of NJ v. Earls and EPIC: In re Historical CSLI. (Jan. 28, 2013)
- New Jersey Supreme Court Considers Cellphone Tracking Case: In State v. Earls, the New Jersey Supreme Court is today hearing arguments on whether the police may use cellphone tracking techniques without court approval. Earlier this year, the US Supreme Court ruled that the police must obtain a court order if they attach a GPS tracking device to a vehicle. EPIC filed a "friend of the court" brief in Earls, urging the New Jersey court to uphold Fourth Amendment protections. The cell phone tracking techniques at issue in the New Jersey case, EPIC argued, "is more invasive than the GPS tracking in Jones." Princeton attorney Grayson Barber is arguing for EPIC as amicus before the New Jersey court. (Oct. 22, 2012)
- Law Enforcement Requests to Wireless Carriers Topped 1.3 Million in 2011: In response to recent letters from Congressman Ed Markey (D-MA), nine mobile wireless carriers have provided detailed reports of law enforcement requests for user cell phone records. These requests come from agencies - across all levels of government - seeking text messages, caller locations, and other information in the course of investigations. The reports show that companies turn over thousands of records a day in response to subpoenas, court orders, police emergencies, and other requests. The volume of requests has increased as much as 16 percent for some companies over the last five years, and some carriers have rejected as many as 15 percent of all requests that they found legally questionable or unjustified. EPIC recently filed amicus briefs in the Fifth Circuit and New Jersey Supreme Court arguing that disclosure of historical and real-time cell phone location information violates a reasonable expectation of privacy and thus requires a warrant under the Fourth Amendment. For more information, see EPIC: In re Historic Cell-Site Location Information, EPIC: State v. Earls. (Jul. 9, 2012)
- EPIC Urges Court to Uphold Location Privacy in Cell Phone Tracking Case: EPIC filed a "Friend of the Court" brief in the Fifth Circuit urging the court to uphold Fourth Amendment protections for cell phone users. In the case, In re US for Historical Cell-Site Data, the lower court held that the disclosure of historical cell phone location records without a warrant would violate the Fourth Amendment. EPIC argued that this opinion should be upheld in light of the Supreme Court's recent decision in United States v. Jones, because cell phone location records are collected without the knowledge or consent of users. The records in this case, EPIC argued, create a "comprehensive map of an individual’s movements, activities, and relationships, . . . precisely the type of information that individuals reasonably and justifiably believe will remain private." For more information, see In re Historical Cell-Site Location Information, EPIC: State v. Earls, and EPIC: US v. Jones. (Mar. 19, 2012)
- EPIC Urges Court to Uphold Location Privacy in Cell Phone Tracking Case: EPIC filed a "friend of the court" brief in the New Jersey Supreme Court urging the court to uphold Fourth Amendment protections for cell phone users. In State of New Jersey v. Thomas W. Earls, the lower court held that an individual has no legitimate expectation of privacy in the location of their cell phone. EPIC argued that the lower court opinion should be overturned in light of the Supreme Court's recent decision in United States v. Jones. The cell phone tracking techniques in this case, EPIC argued, "is more invasive than the GPS tracking in Jones." For more information, see EPIC: State v. Earls, and EPIC: US v. Jones. (Feb. 29, 2012)
Was defendant's arrest valid where law enforcement officers used information from defendant's cell phone provider about the general location of the cell phone; and did the plain view exception to the warrant requirement apply in these circumstances?
The issue presented in Earls is whether the government can constitutionally obtain and use locational information from a defendant's cell phone provider to track a suspect's location without a warrant under the Fourth Amendment. The government engages in this investigatory technique frequently, although its constitutionality is still in question in many courts.
Thomas Earls, the defendant in State v. Earls, was a suspect in a string of residential burglaries. In order to locate Earls, police contacted his cell phone carrier. Because every seven seconds, a cell phone scans for the strongest signal and then identifies itself with that cell phone tower, the police could use these tower logs to track Earls' approximate location. The cell phone carrier notified the police three separate times of Earls' location; on the third the police found Earls' car in a motel parking lot within the targeted area. The police found Earls inside his hotel room along with a flat screen television and other stolen property.
Earls filed a motion to suppress this evidence. The court denied this motion after a three-day evidentiary hearing. Earls then entered a plea bargain, agreeing to seven years of imprisonment. After this, he filed a motion to reopen his appeal challenging the court's denial of his motion to suppress.
The N.J. appellate court denied this motion and ruled that the locational tracking was constitutional because the police monitoring took place on public highways, based in large part on United States v. Knotts and United States v. Karo. However, on January 23, 2012, the U.S. Supreme Court decided Jones. In this decision, a majority of the Court stated that some types of locational tracking, even when done entirely on public highways, can infringe upon a reasonable expectation of privacy. Thus, the ruling in Earls must be re-evaluated.
EPIC has an interest in promoting privacy in digital spaces by upholding robust Fourth Amendment protections. Location privacy is becoming an important issue in Fourth Amendment law as more devices store location data that can later be recovered, intercepted, or otherwise obtained by law enforcement or private parties. EPIC recently filed a "Friend of the Court" brief in US v. Jones, a Supreme Court case involving a Fourth Amendment challenge to the government's unwarranted use of GPS tracking technology during a criminal investigation.
The New Jersey Supreme Court held oral arguments in Earls on October 21, 2012. Then on November 21, 2012, the Court requested additional briefing on six specific questions related to the retroactive application of the warrant requirement, the current state of technology of related to cell phone location tracking, and the reasonable expectation of privacy in cell phone location under federal and state constitutions.
New Jersey Supreme Court
- EPIC Supplemental Brief
- ACLU-NJ Supplemental Brief
- Second Supplemental Brief on Behalf of the State of New Jersey
- Defendant Earls' Letter in Response to the Court's Order Requesting Supplemental Briefing
- Order Requesting Supplemental Briefing
- Supplemental Brief on Behalf of Defendant-Petitioner
- Supplemental Brief on Behalf of the State of New Jersey
- EPIC Amicus Brief
- ACLU-NJ Amicus Brief
New Jersey Appellate Court
- Lower Court Opinion, State v. Earls, 22 A.3d 114 (2011).
Related Cases: Reasonable Expectation of Privacy
- United States v. Jones, 132 S.Ct. 945 (2012).
- United States v. Jacobsen, 466 U.S. 109 (1984).
- United States v. Karo, 468 U.S. 705 (1984).
- United States v. Knotts, 460 U.S. 276 (1983).
Related Cases: Cell Site Location Information
- In re US for Historic CSLI, No. 11-mc-00223 (previously 10-mc-00891, 00990, 00998) (S.D. Tex. Nov. 11, 2011), rejection of the government's Section 2703(d) application on appeal to the Fifth Circuit, Case No. 11-220884.
- In re US for an Order Authorizing Release of Historical Cell-Site Info., 2011 U.S. Dist. LEXIS 93494 (E.D.N.Y. Aug. 22, 2011).
- In re US Order Authorizing Release of Historical Cell-Site Info., 736 F. Supp. 2d 578 (E.D.N.Y. 2010).
- In re US for an Order: Authorizing the Installation & Use of a Pen Register & Trap & Trace Device, 2006 U.S. Dist. LEXIS 45643 (N.D. Ind. July 5, 2006).
- In re Application of US for an Order Authorizing Installation and Use of a Pen Register, 402 F. Supp. 2d 597 (D. Md. 2005).
- In re Order Authorizing the Release of Prospective Cell Site Info., 407 F. Supp. 2d 134 (D.D.C. 2006).
- In re United States, 411 F. Supp. 2d 678 (W.D. La. 2006).
- In re US for an Order Authorizing Use of Two Pen Register & Trap & Trace Devices, 632 F. Supp. 2d 202 (E.D.N.Y. 2008).
- In re US for an Order Authorizing Use of a Pen Register, 396 F. Supp. 2d 294 (E.D.N.Y. 2005).
- People v. Hall, 14 Misc. 3d 245 (N.Y. Sup. Ct. 2006), aff'd People v. Hall, 86 A.D.3d 450 (N.Y. App. Div. 1st Dep't 2011).
Related Cases: Third Party Doctrine
- Smith v. Maryland, 442 U.S. 735 (1979).
- United States v. Miller, 425 U.S. 435 (1976).
Print Media and Blogs
- Police Can Use Cell Phone Signal to Find a Suspect, State Appeals Court Rules, MaryAnn Spoto, N.J. Star-Ledger, July 12, 2011.
- Cell Phone Data and Expectations of Privacy, Peter A. Crusco, Texas Lawyer, Oct. 27, 2011.
- Court Rules that Warrant is Required for Stored Cell Site Location Information, Greg Nojeim, Center for Democracy and Tech., Sept. 12, 2011.
- Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional, Julia Angwin, Wall St. J., Nov. 16, 2011.
- Texas Judge Says Warrantless Cellphone Tracking Violates Fourth Amendment, Saga Continues, Amar Toor, Endgadget, Nov. 18, 2011.
- DoJ: Stingray Cellphone Tracking Device Falls Under Fourth Amendment, but Don't Ask About It, Amar Toor, EndGadget, Nov. 6, 2011.
- Feds Shift Defense of Cellphone Tracking, Jennifer Valentino-Devries, Wall St. J., Nov. 3, 2011.
- Feds' Use of Fake Cell Tower: Did It Constitute a Search?, Kim Zetter, Wired, Nov. 3, 2011.
- Cell Phone Surveillance System, Bruce Schneier, Schneier on Security, Oct. 31, 2011.
- Netizen Report: Occupy the Net Edition, Rebecca MacKinnon, Global Voices Online, Oct. 19, 2011.
- It's Time for Congress to Prohibit and Criminally Punish the Sale of our Cell Phone Records: "Pretexting" for Phone Numbers is a Serious Privacy Violation, Anita Ramasastry, Findlaw, Jan. 23, 2006.
Law Review Articles and Books
- Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data that Congress Could Enact, 26 Berkeley Tech. L.J. (forthcoming Mar. 2012).
- Matthew J. Tokson, The Content/Envelope Distinction in Internet Law, 50 Wm. & Mary L. Rev. 2105 (2009).
- Whitfield Diffie & Susan Landau, Communications Surveillance: Privacy and Security at Risk, 52 Comm. of the ACM 11 (2009).
- Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008).
- R. McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409 (2007).
- Jerry Kang & Dana Cuff, Pervasive Computing: Embedding the Public Sphere, 62 Wash. & Lee L. Rev. 93 (2005).
- Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557 (2004).
- Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, 52 Stan. L. Rev. 1373 (2000).
- Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998).