With the revelations about just how broad and deep government surveillance appears to be in the United States, you may wonder if the right to privacy has simply disappeared. Well, it hasn’t disappeared in New Jersey — at least, not yet.
As you may already know, the U.S. Constitution is the supreme law of the land, so no inferior law — including a state constitution — can violate civil rights guaranteed by it. The reverse, however, isn’t true. State constitutions can offer greater civil rights protections than those provided by the federal constitution.
A case currently before the New Jersey Supreme Court may demonstrate that point. A criminal defendant is hoping to rein in government surveillance by appealing to his privacy rights under the New Jersey Constitution. That way, no matter what the U.S. Supreme Court may or may not say on the matter under the federal constitution, our citizens’ privacy rights would still be protected.
Does New Jersey’s constitution protect the privacy of cellphone metadata?
The case came up as part of a Monmouth County grand jury investigation of whether a certain Asbury Park man was distributing cocaine. Grand juries have subpoena power, meaning they can order third parties to provide any information that isn’t privileged (e.g. attorney-client privilege) or otherwise legally considered private.
During this investigation, the grand jury issued a subpoena against Verizon seeking the man’s cellphone billing and call records. These records include detailed information about who called him and whom he called; for how long and at what time; even exactly where he was when the calls were made. Even without knowing what was said, prosecutors would easily be able to paint a pretty detailed picture of his private life. He appealed to the superior court.
Should prosecutors be allowed to get detailed personal information just by asking for it by subpoena? Absolutely not, the appellate court ruled. New Jersey’s constitution does protect the privacy of this information, so a warrant — not just a subpoena — is required before the government can get its hands on such data.
The Attorney General’s Office apparently hopes this case can be used to overrule previous ones requiring warrants. After all, asking a judge before you dig into the details of someone’s life is such a bother.
On the other hand, New Jersey has a long history of protecting our civil liberties — including requiring warrants.