Is New Jersey Seeking to Become the New California When it comes to Privacy?

By way of a recent opinion of the New Jersey Supreme Court, New Jersey became the first state establishing a Constitutional right to cell-phone location information – thereby precluding law enforcement’s retrieval of such information without a warrant or exigent circumstances.   See State v. Earls, No. A-53-11, slip op., (NJ July 18, 2013) (unanimous opinion).

Recognizing that its decision “creates a new rule of law that would disrupt the administration of justice if applied retroactively”, the Court limited its ruling to the subject defendant and prospective cases only.  Interestingly, the Court did not even make a passing reference to a 2011 New Jersey appellate court that previously ruled no privacy tort existed for the surreptitious use of a location tracking device on a car.  The Earls case is the first appellate case to build on the United States Supreme Court’s GPS decision in United States v. Jones or address in great detail the proliferation and use of location-based information.

The Court in Earles recognized that “[w]ith 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 which shops, doctors, religious services, and political events they go to, and with whom they choose to associate.”  Not surprisingly, the Court also realized “that cell-phone location information can be a powerful tool to fight crime.” 

Relying on the New Jersey Constitution, however, the Court reasoned that individuals expect that information provided to a third party in order to procure services will only be used by the recipient – in this case a telephone company – to provide the services in question.  In addition to this affirmative expectation of privacy, there is also a concomitant expectation that this information will not also be provided to the government. 

New Jersey’s landmark decision comes on the heels of one state legislator’s proposal of an amendment to the New Jersey Constitution stating that “people have a right to privacy from government intrusion, unless the government follows the due process of law.”  In addition to a proposed Constitutional amendment, Assemblywoman Handlin is also the sponsor of six bills and another resolution that address a person’s right to privacy as well as the freedom of the press:

A-4305:  prohibits the improper release of photographs or videos captured by security cameras or other recording devices operated by public entities.

A-4306:  prohibits a governmental entity from obtaining a biometric identifier of an individual without that individual’s consent. The bill does not prohibit any law enforcement agency from obtaining biometric identifiers of someone who has been placed under arrest. A “biometric identifier” is a retina or iris scan, fingerprint, voiceprint or DNA.

A-4307:  a person who knowingly obtains or discloses personally identifiable health information, in violation of the federal health privacy rule, is guilty of a crime of the third degree.

A-4308:  this bill increases the penalties for the unlawful disclosure or use of taxpayer information by State tax officials. The purpose of this bill is to provide enhanced deterrence against violations of taxpayer confidentiality.

A-4309:  requires a Superior Court judge to approve the installation of any video camera by a public entity.

A-4310:  requires an administrative agency to include a privacy impact statement when adopting, amending, or repealing a rule.

ACR-201:  requests the President and Congress enact a federal shield law for journalists. A shield law would grant journalists notice and an opportunity to be heard in federal court in order to challenge a federal subpoena seeking phone records or other information identifying a source. Federal bills S.987 and H.R.1962, both titled the “Free Flow of Information Act of 2013,” were introduced in May 2013. The bills would establish the federal shield law.

Sandwiched between these privacy-protective efforts, exists a bill aimed at safeguarding the social media accounts of employees.  Before it was conditionally vetoed by Governor Christie in May 2013, New Jersey was teetering on passing the most onerous law in the country regarding employee social media protections – allowing for a private right of action and seeking to bar employers from even asking if an employee has a social media account.  As it currently stands, the bill – if it is ever finally signed by the Governor – will still be among one of the stronger such laws.

Despite its recent efforts, New Jersey still has a great deal of heavy lifting before it can catch up with the land of SB 1386 – California already has a constitutionally guaranteed right to privacy, over seventy privacy-related laws on the books, and multiple regulatory agencies set up to enforce these laws.   It is no surprise that Attorney General Kamala Harris’s recent report opens with the words:  California has the strongest consumer privacy laws in the country.