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TRENTON – Easy access to a criminal target’s cellular telephone billing records could save lives, the state of New Jersey argued in court Monday.
But defense attorneys and civil libertarians say that access, absent a judge’s approval, would stomp on constitutionally protected privacy rights and give the government unfettered, unlimited views into citizens’ personal lives, revealing things that may not be related to any criminal investigation and allowing the government to amass that intelligence for other purposes.
Now, the justices on the New Jersey Supreme Court will have to decide whether to grant law enforcement agencies the ability to obtain the cellular telephone bills of individuals without having to get a warrant from a judge – something that requires they first prove there is probable cause to believe a crime is being committed.
The state’s highest court on Monday heard arguments from attorneys on that issue in an appeal of a Monmouth County criminal case.
The arguments come amid a growing debate that pits national security concerns against privacy rights, most notably in the case of whether the government can order Apple to unlock the iPhone of one of the San Bernardino shooters.
In the Monmouth county case, Gary Lunsford, 25, of Asbury Park is charged with distributing cocaine in May of 2014.
Lunsford’s criminal case is at a standstill until the state Supreme Court decides the issue about whether police can get his cellular telephone billing records without a warrant.
The state Attorney General’s Office is seeking a ruling that says it can get the records by getting a grand jury to issue a subpoena for them – something that does not require a showing of probable cause.
A Monmouth County grand jury issued such a subpoena for Lunsford’s records in 2014, and Lunsford’s attorney, Dean I. Schneider of Red Bank, sought to quash that subpoena.
The attorney general’s office took over the issue from the Monmouth County Prosecutor’s Office as a test case in its attempt to get the state Supreme Court to overrule its own 1982 decision in a case known as state vs. Hunt that said a warrant is required for police to get someone’s telephone records.
Last year, Superior Court Judge John T. Mullaney, now retired, quashed the subpoena for Lunsford’s records following a hearing in Superior Court in Monmouth County.
The attorney general’s office appealed Mullaney’s ruling to the Supreme Court, which agreed to decide the issue.
“This is about public safety,’’ Deputy Attorney General Robert Susswein told the justices at Monday’s hearing, rejecting the notion that the appeal was about trying to allow law enforcement to take shortcuts in their investigations.
Susswein brought up a hypothetical situation of someone dying from a drug overdose that could have been avoided if police were able to bust up the dealer’s operation sooner.
“What we’re talking about is public safety,’’ he said, “the right of people to be free from criminal attack. …This is about the ability to bring to justice and interrupt these criminal schemes as quickly as possible, balancing that against privacy interests.’’
Getting needed records for a criminal investigation through a subpoena is not the difference of a matter of hours to go to a judge for a warrant, but the weeks it takes to get enough information to establish probable cause, Susswein explained.
“We want to get this at the beginning of an investigation …because lives are at stake,’’ he said.
Some of the justices expressed concern that law enforcement would go beyond what is needed for their criminal investigations and aggregate data in bulk for intelligence purposes.
“It has to be relevant to an ongoing, bona fide criminal investigation,’’ Susswein told them. “This case is not about bulk collection. We are not suggesting you have bulk collection so we could troll through the data later.’’
Justice Lee A. Solomon seemed skeptical.
“Even though it is relevant to an ongoing investigation, there is the temptation to keep it going and analyze it,’’ he said.
Schneider argued that the state, in the subpoena issued in Lunsford’s case, asked for a broad array of information that included “all other account information’’ in addition to the call billing records.
“My principal interest in this case is protecting Mr. Lunsford’s privacy interests,’’ he said.
The state is asking for “carte blanche,’’ he said.
“What Mr. Susswein is saying is ‘you can trust us,’’’ Schneider said.
Susswein argued that since the state Supreme Court’s 1982 decision in the Hunt case, there have been other rulings granting law enforcement access to certain other third-party business records, such as bank and credit card records and Internet provider information, by way of a subpoena rather than a warrant. Susswein stressed that the information being sought through a subpoena in this case was not the content of telephone conversations, but phone numbers and lengths and times of calls.
Chief Justice Stuart Rabner asked Schneider why such cell phone billing records should have more privacy protections than bank records.
Schneider said bank records are less revealing.
“Almost every aspect of life is conducted by smart phone in this day and age,’’ he said. “The contact information in a cell phone really is a picture into someone’s life well beyond anything in financial records.’’
Schneider said the state offered no compelling reason for the court to overturn its own ruling.
Two other attorneys also argued as friends of the court, siding with Schneider and the privacy rights of individuals. One of those was Kevin H. Marino, who argued on behalf of the Association of Criminal Defense Lawyers of New Jersey.
The call records, while not exposing the content of a phone conversation, can be just as revealing, Marino argued.
“Ask someone who’s called a suicide hotline,’’ he said. “Knowing who you call and who calls you is a really big deal.’’
The court’s ruling in the Hunt case, Marino said, was not long after Watergate, in which the Nixon administration was subpoenaing “all these telephone records’’ trying to find out who was calling reporters.
“The President Obama White House has done almost the same thing,’’ Marino said.
Frank Corrado, representing the American Civil Liberties Union of New Jersey, Electronic Frontier Foundation, Brennan Center for Justice and the New Jersey Office of the Public Defender, said if law enforcement is allowed to access telephone records without a warrant, there would be no limit to the amount of information it could ask for.
“The nature of what the state is doing when it accesses telephone billing records is far closer to what the NSA (National Security Administration) is doing than it is to getting the names of someone who is associated with a particular telephone number,” Corrado said.
The Supreme Court usually issues its rulings some months after hearing oral arguments on a case.
Kathleen Hopkins: (732)643-4202; Khopkins@app.com