New Jersey Supreme Court Restricts Police Searches of Phone Data

The ruling puts the state at the forefront of efforts to define the boundaries around a law enforcement practice that a national survey last year showed was routine, and typically done without court oversight or public awareness. With lower courts divided on the use of cellphone tracking data, legal experts say, the issue is likely to end up before the United States Supreme Court.

The New Jersey decision also underscores the extent of the battles over government intrusion into personal data in a quickly advancing digital age, from small town police departments to the National Security Agency’s surveillance of e-mail and cellphone conversations.

Several states and Congress are considering legislation to require that warrants based on probable cause be obtained before investigators can get cellphone data. Montana recently became the first state to pass such a measure into law. The California Legislature approved a similar bill in 2012, but Gov. Jerry Brown vetoed it, saying it did not “strike the right balance” between the needs of law enforcement and the rights of citizens.

The Florida Supreme Court ruled in May that the police could seize a cellphone without a warrant, but needed a warrant to search it. And a case before the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., is weighing whether investigators acted legally when they got a court order, but not a warrant, to obtain 221 days of cellphone location data for suspects in an armed robbery case in Maryland.

“This type of issue will play out in many jurisdictions for the simple reason that cellphones are so prevalent in daily life,” said Peter G. Verniero, a former New Jersey attorney general and State Supreme Court justice. “The decision affects just about everybody.”

“Law enforcement is trying to keep up with technology, as well they should,” he added. “It’s very legitimate for law enforcement to use technology, but this court decision is a strong reminder that constitutional standards still apply. The courts have to adapt, and law enforcement has to adapt.”

The ruling involved a case that began with a string of burglaries in homes in Middletown, N.J. A court ordered the tracing of a cellphone that had been stolen from one home, which led to a man in a bar in nearby Asbury Park, who said his cousin had sold him the phone, and had been involved in burglaries. The police then used data they got from T-Mobile to locate the suspect, Thomas W. Earls, at three points on a subsequent evening, tracking him to a motel room where he was found with a television and suitcases full of stolen goods.

In a unanimous decision, the State Supreme Court said that when people entered cellphone contracts, “they can reasonably expect that their personal information will remain private.”

The justices recognized that this departed somewhat from federal case law. But they relied in part on a United States Supreme Court decision last year that the police could not attach a Global Positioning System to a suspect’s car without a warrant. A cellphone, the New Jersey justices said, was like a GPS device.

“Using a cellphone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records,” said the opinion, written by Chief Justice Stuart Rabner. “Details about the location of a cellphone can provide an intimate picture of one’s daily life and reveal not just where people go — which doctors, religious services and stores they visit — but also the people and groups they choose to affiliate with. That information cuts across a broad range of personal ties with family, friends, political groups, health care providers and others.”

Besides establishing a firmer legal bar for the police to obtain cellphone data, the Supreme Court also remanded the case to the appeals court to determine whether the evidence collected using the cellphone records could be admitted in court under an “emergency aid exception” to the requirement for a warrant.

Last year, the American Civil Liberties Union reviewed records from more than 200 local police departments, large and small, and found that they were aggressively using cellphone tracking data, so much so that some cellphone companies were marketing a catalog of “surveillance fees” to police departments, to track suspects or even to download text messages sent to a phone that had been turned off. Departments were using the information for emergency and nonemergency cases.

Some departments had manuals advising officers not to reveal the practice to the public. Others defended its use. The police in Grand Rapids, Mich., for example, had used a cellphone locator to find a stabbing victim who was in a basement hiding from his attacker.

The law has been slow to keep up. The Florida decision in May rejected the reasoning of a lower court that had based its approval of cellphone tracking on a 1973 United States Supreme Court case that allowed heroin found in a suspect’s cigarette pack to be introduced as evidence. “Attempting to correlate a crumpled package of cigarettes to the cellphones of today is like comparing a one-cell organism to a human being,” the decision said.

Nationally, court decisions about cellphone tracking have considered whether it comports with the Fourth Amendment, which guards against unreasonable searches and seizures. But the justices in New Jersey based their decision on the State Constitution, which affords greater privacy protection. The state court has previously ruled in favor of electronic privacy. In 2008, it said that police had to obtain a subpoena from a grand jury to obtain Internet provider records.

“The inescapable logic of this decision should be influential beyond New Jersey because it makes complete sense as to an individual’s reasonable expectation of privacy,” said Rubin Sinins, who filed a friend of the court brief on behalf of the American Civil Liberties Union and the New Jersey Association of Criminal Defense Lawyers.

As Social Media Swirl Around It, Supreme Court Sticks to Its Analog Ways

They will be joined, if Twitter is any guide, by thousands of anxious, curious people across the country eagerly waiting for the court to rule on a remarkable number of major cases with huge implications. With just days remaining in its 2013 schedule, the court has left dangling its considered opinions on same-sex marriage, affirmative action and the nation’s voting rights laws.

“We all crave information instantaneously,” said Ms. Blatt, a lawyer at Arnold & Porter who has argued 33 cases before the court, including one that is still pending this year. Last Monday, and again last Thursday, she found herself scouring legal blogs, looking for whatever clues might exist.

“I always thought those people were strange, and there I was, doing it,” she said. “People are dying to know something that they can’t.”

In a city beset by leaks — a young programmer recently gave a hoard of top-secret documents to newspapers — the high court’s annual rulings remain stubbornly opaque until they are handed out (on paper, first) by the court’s public relations staff. Meanwhile, the nine justices have the luxury of appearing publicly oblivious to the swirl of social media, the angst of Washington’s legal community and the voracious appetite of America’s 24-hour news cycle.

Many Washington institutions are making the high-tech transition; even the chairman of the Federal Reserve holds regular news conferences now. But like the Kremlinologists of the cold war, who deduced Communist power struggles by a leader’s presence on the Red Square reviewing stand, modern-day court watchers can do little more than speculate about when and how the court might rule.

“You never know when it’s going to come down,” said Mr. Olson, a former solicitor general who would know, if anyone would. A court observer for decades, he has shown up on each of the last three decision days at the court. “I just try to prepare for anything.”

Mr. Griffin is a founder of the American Foundation for Equal Rights, the organization that filed the legal challenge to Proposition 8, which banned same-sex marriage in California. Four times in the last two weeks, the court has issued decisions in other cases but not about that law’s constitutionality. Each time, Mr. Griffin has returned home and unpacked, lest his suits become wrinkled.

On Monday, Mr. Griffin will return once again, joined by the four plaintiffs in the case, who plan to stay in Washington until the high court rules, before they return home to California. If the court overturns the ballot initiative, the couples hope to have a wedding ceremony as soon as possible.

Across California, gay rights organizations have started many early mornings refreshing their Web pages for news and then going back to bed. Staff members at the Los Angeles Gay and Lesbian Center have elaborate plans for action after any outcome, and they are preparing to head into the office in the early morning as they anticipate widespread celebration or protest in West Hollywood.

And lawyers at the office of California’s attorney general, Kamala D. Harris, have been preparing for weeks with legal memos anticipating a wide range of possible outcomes.

The Web is ready, too. On Thursday, after the justices once again did not issue rulings in any of the biggest cases, news organizations blared the “news” to their followers. “BREAKING NEWS: No major decisions from Supreme Court today,” the Yahoo News site announced on its Twitter feed. Another Twitter user wryly observed: “Clearly all Supreme Court judges were unpopular kids in high school and, excited by all the attention now, are gonna drag this out.”

A year ago, in the minutes before the court announced its decision on President Obama’s health care law, Twitter users posted more than 13,000 messages a minute about the court. (By comparison, there were 160,000 a minute at the height of the presidential debate in Denver last year.)

The court’s term is dwindling fast. The schedule calls for a round of rulings on Monday, and court observers believe the justices may issue decisions on Wednesday and Thursday as well. There has been speculation of a July 1 session, though Chief Justice John G. Roberts Jr. is scheduled to teach a class on the history of the Supreme Court in Prague on July 2.

There will be other issues in Washington this week. The Senate is set to take a final vote on an immigration overhaul, perhaps on Thursday. (If the court overturns the federal Defense of Marriage Act first, lawmakers may not need to seek immigration protections for same-sex partners of immigrants, advocates said.)

But most of the intellectual guesswork will be about the justices and their rulings.

There are ways, if you know them, to offer educated guesses about the timing and authorship (if not the substance) of the court’s coming decisions. The tricks have become de rigueur among the Washington social set, whose members swap Supreme Court theories at cocktail parties the way Angelenos swap movie industry gossip.

“Everybody around this time starts to try to predict who has the decision and what it’s going to say,” said Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University. Mr. Gornstein calls himself a “participant” in the court-guessing parlor games. This year, he said, is the worst he can remember.

“Here you have four huge cases, which is really extraordinary for a Supreme Court term,” Mr. Gornstein said. “I can’t remember when you’ve had this many cases at the end of a term.”

Among the tricks of the court-watching trade is knowing that each of the justices is assigned to write the majority opinion in at least one case during each two-week “sitting,” when cases are heard for oral arguments. On Monday, if there are rulings yet to be announced from a particular sitting, and a justice who has not yet written an opinion from that set of cases, that justice might be a good bet.

Knowledgeable observers also keep close watch on the number of boxes of rulings set out by the public information officers at the court. The more boxes, the more rulings.

“It is a game that everybody’s playing because it’s so important,” Mr. Olson said. “These decisions are really important to the people involved, and they have consequences for a long time.”

Adam Liptak contributed reporting from Washington, and Jennifer Medina from Los Angeles.

Supreme Court Eases Import and Sale of Copyrighted Products

WASHINGTON — In a pair of decisions issued on Tuesday, the Supreme Court made it easier to import textbooks and other copyrighted products from abroad and made it harder for plaintiffs in class-action suits to stay out of federal court.

The copyright case, Kirtsaeng v. John Wiley & Sons, No. 11-697, arose from the activities of a Thai student who attended Cornell University and the University of Southern California. The student, Supap Kirtsaeng, helped pay for his education by selling textbooks that his friends and relatives had bought in Thailand at low prices and shipped to him.

A publisher of some of the textbooks, John Wiley & Sons, sued Mr. Kirtsaeng for copyright infringement, and it won $600,000 in the lower courts. In a 6-to-3 decision, the Supreme Court threw out that award and ruled that imported copyrighted goods were subject to the same rules as goods bought in the United States: owners of particular copies can do what they like with them.

In legal jargon, the court applied the first-sale doctrine to copyrighted materials from abroad. Under that doctrine, buyers of books, records and other copyrighted goods may lend or sell them as they wish.

The decision will have consequences for all manner of products, including books, records, art and software. Industry groups had told the justices that a decision permitting copyrighted foreign goods to be sold in the United States would limit their ability to sell materials more cheaply in developing markets and result in higher prices overall.

The case turned on a phrase in the Copyright Act, which limits the first-sale doctrine to works “lawfully made under this title.” The lower courts said that textbooks manufactured outside the United States could not have been made under American law and so remained subject to the control of the owner of the copyright.

Justice Stephen G. Breyer, writing for the majority, said the phrase was not concerned with geography. He said he doubted “that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial and consumer activities.”

Much of his opinion concerned the potential consequences of a contrary ruling, one that he said “could prevent a buyer from domestically selling or even giving away copies of a video game made in Japan, a film made in Germany or a dress (with a design copyright) made in China.”

He buttressed the point by surveying supporting briefs from libraries, used-book dealers, technology companies and museums, all of which warned that allowing copyright suits over goods imported from abroad would have pernicious consequences. Libraries could be barred from lending foreign books, the briefs said, and museums from displaying foreign art.

In their own briefs, Wiley and its allies discounted this “parade of horribles” as unrealistic. Justice Breyer responded, “We are not so sanguine.” The possible practical problems of ruling the other way, he said, “are too serious, too extensive and too likely to come about for us to dismiss them as insignificant — particularly in light of the ever-growing importance of foreign trade to America.”

An aside in a 1998 decision suggested that the court would rule differently on Tuesday, but Justice Breyer said the court was free to ignore a statement made in passing. “Is the court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?” he asked.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Ruth Bader Ginsburg, joined by Justice Anthony M. Kennedy and, for the most part, Justice Antonin Scalia, dissented, saying the majority’s “bold departure from Congress’s design” was “stunning.” She added that there were many ways to address “the anticipated horribles” that Justice Breyer had outlined.

“It should not be overlooked,” she wrote, “that the ability to prevent importation of foreign-made copies encourages copyright owners such as Wiley to offer copies of their works at reduced prices to consumers in less developed countries who might otherwise be unable to afford them.”

In the class action case, Standard Fire Insurance Company v. Knowles, No. 11-1450, the court unanimously ruled that plaintiffs’ lawyers cannot avoid the requirements of a federal law that allows some kinds of class actions to be moved from state to federal court by promising to accept less money than the class might be owed.

The law, the Class Action Fairness Act of 2005, allows defendants to move some big class actions out of state courts thought to be hostile to business interests as long as the proposed class has more than 100 members, at least one of them is from a different state than a defendant and the amount at stake is more than $5 million.

The case concerned the Standard Fire Insurance Company, which is based in Connecticut and was accused in a proposed class action filed in Arkansas of failing to make full reimbursements for property damage claims. The plaintiffs’ lawyers stipulated that they would limit to $5 million the amount sought by the lead plaintiff and the class he sought to represent.

Justice Breyer, writing for the court, said the tactic would not work. “Stipulations must be binding,” he wrote. But, he said, “a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.”