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NJ’s High Court Reexamines Law Enforcement’s Ability to Obtain Telephone Records

It is a bedrock principle of New Jersey Constitutional law that when the government seeks to intrude into one’s private affairs, certain Constitutional protections apply.  The greater the degree of intrusion, the greater should be the level of protection.  Recently, in State v. Lunsford, the New Jersey Supreme Court reexamined its own prior rulings regarding the protections afforded to one’s private telephone billing records.

Until this case, law enforcement officers had to obtain a communications data warrant (the equivalent of a search warrant), supported by probable cause, to obtain an individual’s telephone billing records as part of a criminal investigation.  Telephone billing records include the numbers dialed to and from a particular phone, but not the contents of any conversations.  On the other hand, officers have long been able to obtain an individual’s bank and credit card records with only a grand jury subpoena.  A subpoena simply requires that the document in question is relevant to an ongoing criminal investigation, a lower standard than probable cause.  Generally, a judge does not need to review a subpoena before it is issued by a prosecutor.

In State v. Lunsford, the New Jersey Supreme Court lowered the standard for law enforcement to obtain telephone billing records.  The Court calls the new standard a compromise between one’s privacy interests in these records and the public’s interest in effective law enforcement.  Officers no longer need to obtain a warrant, but a subpoena alone is not enough either.  The law enforcement agency seeking phone records must now present to a judge “specific facts to demonstrate that telephone billing records are relevant and material to an ongoing criminal investigation.” Judicial review, and approval, is considered a safeguard against potential abuse and infringement on these important privacy interests.

If you have any questions about this post or any related matters, please contact me at nfpellitta@nmmlaw.com.