In Defense of the Reasonable Expectation of Privacy: Cell Phone Tracking as an Unreasonable Search and How New Jersey Got It Right

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I. 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 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. II. CELL PHONE TRACKING TECHNOLOGY AND FEDERAL INTERPRETATION OF TECHNOLOGY PRIVACY RIGHTS A. 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). …