Just how pervasive is government’s warrantless collection of data from the cellphone nearly every American now carries? More importantly, how legal is that activity? Is there a point at which it crosses the line and becomes a clear invasion of privacy?
These are questions that are not fully answered yet. But courts around the country, including in New Jersey, are being asked to deal with them more and more. And as the decisions come in, we would all do well to keep tabs on their implications.
One case related to metadata collection captured headlines lately. In Florida, the state’s Supreme Court heard the appeal of a convicted drug dealer who claimed that his right to privacy had been violated when police, without a warrant, used real-time cellphone tower signals to track him subsequent to his arrest. As was reported by Wired magazine last month, while lower courts rejected the claim, the state’s high court called the practice a violation of the Fourth Amendment of the Constitution.
Meanwhile, Reuters and others report that a federal appeals court in Washington, D.C., heard arguments in a civil suit alleging that the National Security Agency’s practice of collecting metadata from millions of Americans’ phone records. A lower court has ruled that the program probably is illegal. But observers say questions from the appeals court seem to indicate that the panel won’t uphold the lower court’s decision.
While the fact that most of these types of cases are generated by appeals related to criminal convictions may not be appreciated by many, it is nonetheless true.
It’s necessary to understand the adversarial nature of the U.S. justice which pits the rights of individuals against the claimed good of the state. Under the Constitution, the scales are designed to be tipped in favor of individuals. And that highlights the importance of understanding that if you are charged with a crime, you should seek the aid of experienced legal counsel.