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Monday, June 16, 2014

Warrantless Spying On One Hand, Stonewalling With The Other

The New Jersey Attorney General's Office -- whose Attorney General is not elected, but is appointed, by the Governor (Chris Christie) -- has reportedly solicited test cases to establish that the State has the right to get the phone records of people without getting a warrant.  This means that people not convicted of a crime, and people as to whom no probable cause that they have committed a crime has been established, would still be subject to having their personal records searched.

Your Fourth Amendment rights would be under new jeopardy.  The Fourth Amendment, lest you forget, provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basis for this story is a troubling memorandum out of the New Jersey Attorney General's Office and just reported earlier today by the Newark Star-Ledger.

It deserves noting that the Attorney General's Office, being a part of the state Executive Branch, is effectively a defense counsel for a gubernatorial administration currently under siege in various scandals.

Theoretically, at least, the right to warrantless access to personal communications records would give the Attorney General's Office, operating under the auspices of the Governor's Executive Branch, the ability to inspect and surveill (and in a darker scenario, harass and intimidate) members of the press, public-minded civic activists and media and political critics.

In the meantime, the Christie Administration has routinely deflected public records requests under the state's Open Public Records Act.  (I have a client who has sued to get some of these records.)  Transparency, it seems, is a one-way street.

This initiative is a big threat to civil liberties, and warrants (no pun intended) continued attention.

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