A Path to the Solution of the Conjunction Paradox?

The "conjunction paradox" has bedeviled legal theorists for years. It still does. See, e.g., Kevin M. Clermont, Death of Paradox: The Killer Logic Beneath the Standards of Proof Cornell Law Faculty Publications, Scholarship@Cornell Law: A Digital Repository (Feb 1, 2013). Some legal theorists who doubt that the standard probability calculus is a satisfactory "model" of judicial proof are particularly prone to flog their opponents with this paradox.

But what is the conjunction paradox? According to Professor Clermont, id. at 1106, Professor Charles Nesson constructed "the best-known statement of the infamous conjunction paradox." Clermont quotes (id.) Nesson thus (original article: Charles Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harvard Law Review 1357, 1385-88 (1985) footnotes omitted)):

"We purport to decide civil cases according to a more-probable-than-not standard of proof. We would expect this standard to take into account the rule of conjunction, which states that the probability of two independent events occurring together is the product of the probability of each event occurring separately. The rule of conjunction dictates that in a case comprised of two independent elements the plaintiff must prove each element to a much greater degree than 50%: only then will the plaintiff have shown that the probability that the two elements occurred together exceeds 50%. Suppose, for example, that a plaintiff must prove both causation and fault and that these two elements are independent. If the plaintiff shows that causation is 60% probable and fault is 60% probable, then he apparently would have failed to satisfy the civil standard of proof because the probability that the defendant both acted negligently and caused injury is only 36%.

      "In our legal system, however, jurors do not consider whether it is more probable than not that all elements occurred in conjunction. Judges instruct jurors to decide civil cases element by element, with each element decided on a more-probable-than-not basis. Once jurors have decided that an element is probable, they are to consider the element established, repress any remaining doubts about it, and proceed to consider the next element. If the plaintiff proves each element by a preponderance of the evidence, the jury will find in his favor.... Thus, jurors may find a defendant liable even if it is highly unlikely that he acted negligently, that is, the conjoined probability of the elements is much less than 50%. In such cases, the verdict fails to reflect a probable account of what happened and thus fails to minimize the cost of judicial errors ...

"...

"... Although courts direct juries to consider and decide each element seriatim, juries do not consider each item of evidence seriatim when deciding whether a given element is proved. The jury must decide each element by looking at all of the evidence bearing on proof of that element. Thus, although the jury does not assess the conjunction of the elements of a case, it does decide each element by assessing the conjunction of the evidence for it."

The conjunction paradox persists even if we assume juries are told to assess the probability of a whole claim (or affirmative defense) as well as the probability of each element of the claim (or affirmative defense).

The conjunction paradox persists even if we assume that there are some partial dependencies among the elements of a claim (or affirmative defense).

The conjunction paradox takes an acute form in criminal cases - in which, let us assume, jurors are instructed they must find that proof establishes each element of the charge beyond a reasonable doubt and also the entire charge beyond a reasonable doubt. The problem here is that if the charge has two or more essential elements and if a numerical value such as a .95 probability is assigned to "beyond a reasonable doubt," it seems to follow, by probability logic - specifically the product rule, contrary to the instructions jurors are actually given,  that they must find that the probability of at least one of those elements must be very substantially above .95. If not, it seems to follow - by the probability logic - that jurors can return a guilty verdict even if they believe that the probability of the existence of all the essential elements taken together is less than .95.

I have made some entirely unsatisfactory attempts to develop a solution to the conjunction paradox. See, e.g.,

Sunday, April 18, 2010

My Muddled Musings about L.J. Cohen's Conjunction Paradox

Cf. my unsuccessful attempt to begin to find another way through the muddle:

Sunday, November 21, 2010

Three Questions about the Conjunction Paradox

I am now going to try to begin work toward very different kind of solution. Consider the following (fragmentary and tentative!) gambit:

Take the following possible situation (Situation X):

At about 3:00 p.m., on June 5, 2013, (a) James Jones becomes angry at Valiant Victim, (b) decides to hurt Valiant Victim, (c) picks up a knife, and (d) stabs Valiant Victim.

We can think of the Situation X as a set of distinct events a – d .

We can also think of the above situation Situation X as one event - as a single event - that has a number of parts or features (e.g., the events or features above, a – d ).

Probability theory alone does not tell us which of these two ways we should or must think of Situation X.

If we can or should think of Situation X with features a – d (only) as a single (possible) event, we are free to think of the question of the probability of Situation X without believing that we must or should think of the probabilities of each of the events or features a – d.

• It is quite true that it is possible think of Situation X as a (possible) compound event that is nothing more than the collection of (possibly-connected) distinct events a – d over time.
• If we think of Situation X in (only) this way, we can and surely must (at the very least) think of the separate probabilties of each of the events a – d if we wish to assess the probability ofSituation X.
• Given the hypothesized way we are now thinking of Situation X, if we do not ponder these separate probabilities, we cannot possibly assess the probability of Situation X. This is because we think of Situation X as nothing more than the conjunction (over time) of events a – d.
• But it is also true that it is possible to think of Situation X(only) as a single event with the features a – d over time. In that event, if we wish to assess the probability of Situation X, the structure of our thinking (or imagination) about Situation Xdoes not force or drive us to ponder the separate probability of each a – d. Indeed, if we think of Situation X as nothing more than a single event, we cannot readily imagine the possibilty of separate assessments of the probability of each a – d.

But a question: In a trial we take (and must take) evidence about matters such as events or elements a – d. Does it follow that we must think of (factual) hypotheses such as Situation X as being nothing more than a possible composite event consisting of events a – d?

Answer: I don't think so. The evidence in question may generate in our minds the hypothesis Situation X with the features a – d. Cf. P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation, 24 University of California at Davis Law Review 931 (1991) (arguing in part that evidence serves to generate and refine hypotheses as well as to prove or disprove formulated hypotheses). But once a factual hypothesis is crystallized in our minds, we are free (as a logical matter) to think or imagine that the evidence about a – d is nothing more than evidence about the entire hypothesis Situation X.

But note (and this is an important note, a very important refinement): As I have hinted above - by using words such as “only” and “just” - I think it is both possible and likely that our minds shift between thinking of a factual scenario such as Situation X as being, one the one hand, a single event and, on the other hand, a composite event (i.e., an event consisting of distinct sub-events). If this is the case, it follows that when we shift from one way of thinking about a factual scenario to the other, the way that probability theory is applied to the situation also changes and must change. And that's perfectly fine and appropriate. Probability theory is a formal tool that does not, by itself, specify or even suggest how possible events in the world should or must be carved up.

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University and Law School Finances, Faculty Salaries, and Golden Bears

I was rummaging through my old papers when I found the following churlish memo from a colleague who teaches at a law school somewhere in the U.S.:

_{Thursday, October 3, 2002}

To:      Tenured Faculty

From:  Prof. XXXXXX (Room [...])

Re:    Salary Increases (Decreases)

We are now more than more than three months into the fiscal year, and salary increases (decreases) have not yet been announced or implemented. Given these uncertain times, I would like to make several modest proposals:

1. The current practice of not discussing possible salary increases (decreases) with individual faculty members before individual salary increases (decreases) are determined should continue. Faculty members plainly cannot give disinterested opinions about their own salary increases (decreases).

2. The policy of not announcing salary increases (decreases) a significant amount of time before they are implemented should continue. Faculty members will be more content with their present salaries - unless, of course, decreases are awarded - if they do not know in advance the salaries they will later receive.

3. The policy of making decisions about salaries after all other budgetary decisions have been made should continue. It is clear that faculty members can be given only the money that is left over after matters such as heat, electricity, photocopying expenses, building renovations, painting, floor waxing, computers, journal subscriptions, and the like have been taken care of. (If there's no money, there's no money.)

• Indeed, the law school and the university have been too timid in their treatment of the date of the implementation of salary increases. Salary increases should be made effective no earlier than ten months after the start of the fiscal year. This would give the university and the law school substantial new interest income - without adversely affecting [my law school]'s status in the U.S. News & World Report rankings. The amount of interest foregone by individual faculty members is relatively minuscule and most of faculty members won't notice the difference between the present value and the future value of their salary increases, and they may even appreciate the opportunity to defer payment of taxes on the delayed salary increases.

4. Youth is good. And the youth movement should continue. In particular: the law school and the university ought to continue the present policy of granting younger faculty members (relatively) substantial salary increases while granting the "golden bears" very small salary increases. (I put aside here the phenomenon of aggressive golden bears; these are people who know how to lobby for themselves. Passive golden tears deserve what they get, which is very little.) The older folks aren't going anywhere. Besides, they don't need the money. To avoid problems with legislation prohibiting discriminatory treatment on the basis of age, the unproductivity of the "golden bears" and their inadequate performance, or both, should be meticulously documented.

5. It seems likely that the law school and the university will continue to use the number of articles published in American law journals as the primary benchmark of faculty productivity. This is clearly the right thing to do. The U.S. News & World Report rankings are all that count (unless, of course, the question is the appropriate student-faculty ratio). Fluff - publication of books, online publishing, publishing in foreign journals, standing in one's field, and similar matters - should count much less, if at all. We have to take the world of rankings as we find it.

Well, that's about it for now.

But remember: ABC University [our university] cares for you. If you don't get what you want, there is always an open door somewhere where you can hash things out and perhaps achieve satisfaction. And I don't need to tell you that our law school is a community in which all watch out for the interest of all.

Now let's get on with faculty recruitment. We have a great story to tell!

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Syria: Evidence and Facts

from Mark Mardell, UK Syria vote leaves US asking 'what's so special?' BBC News (August 29, 2013)

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"I feel better now."

Do you suppose Pres. Obama will say to himself Thursday, "I feel better now"?
Will he feel the same way Friday?
A year from now?
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Right of Confrontation in China?

According to English-language CCTV and other media, a recorded videotape of Bo Xilai's spouse Gu Kailai was admitted against Bo Xilai in his criminal trial for corruption and other charges. Should I assume that the PRC does not recognize (even on paper) a right of confrontation that resembles the current form of the Confrontation Right in the United States?

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Brazil's Interesting Chief Justice

Simon Romero, A Blunt Chief Justice Unafraid to Upset Brazil’s Status Quo NYTimes (August 23, 2013).

I wonder if debates about (liberal or left-wing) "judicial activism" are being replayed in Brazil.

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Does Thomas Nagel Say Anything about "Evidence"?

Does Thomas Nagel's recent theorizing about "materialism" (see below for the link to his summary) say anything about the nature of evidence? I believe it does. Cf. Part III of P. Tillers, Are There Universal Principles or Forms of Evidential Inference?

Go thou and read Thomas Nagel, The Core of 'Mind and Cosmos' NYTimes (August 18, 2013)!
Nagel's introduction to his summary:
This is a brief statement of positions defended more fully in my book “Mind and Cosmos: Why the Materialist Neo-Darwinian Conception of Nature Is Almost Certainly False,” which was published by Oxford University Press last year. Since then the book has attracted a good deal of critical attention, which is not surprising, given the entrenchment of the world view that it attacks. It seemed useful to offer a short summary of the central argument.

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Peggy Noonan on Privacy and the Surveillance State

Peggy Noonan, What We Lose if We Give Up Privacy, Wall Street Journal (August 15, 2013).

Snippet:

Privacy is connected to personhood. It has to do with intimate things—the innards of your head and heart, the workings of your mind—and the boundary between those things and the world outside.

A loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications. That is the view of Nat Hentoff, the great journalist and civil libertarian. He is 88 now and on fire on the issue of privacy. "The media has awakened," he told me. "Congress has awakened, to some extent." Both are beginning to realize "that there are particular constitutional liberty rights that [Americans] have that distinguish them from all other people, and one of them is privacy."

Mr. Hentoff sees excessive government surveillance as violative of the Fourth Amendment, which protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and requires that warrants be issued only "upon probable cause . . . particularly describing the place to be searched, and the persons or things to be seized."

But Mr. Hentoff sees the surveillance state as a threat to free speech, too. About a year ago he went up to Harvard to speak to a class. He asked, he recalled: "How many of you realize the connection between what's happening with the Fourth Amendment with the First Amendment?" He told the students that if citizens don't have basic privacies—firm protections against the search and seizure of your private communications, for instance—they will be left feeling "threatened." This will make citizens increasingly concerned "about what they say, and they do, and they think." It will have the effect of constricting freedom of expression. Americans will become careful about what they say that can be misunderstood or misinterpreted, and then too careful about what they say that can be understood. The inevitable end of surveillance is self-censorship.

All of a sudden, the room became quiet. "These were bright kids, interested, concerned, but they hadn't made an obvious connection about who we are as a people." We are "free citizens in a self-governing republic."

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"Targeted" NSA Electronic Surveillance

For certain purposes NSA claims it conducts surveillance only of "targets." But in NSA-speak "target" is a very squishy word. See Mark Rumold, What It Means to Be An NSA "Target": New Information Shows Why We Need Immediate FISA Amendments Act Reform (blog) Electronic Frontier Foundation (August 8, 2013):

An important New York Times investigation from today reporting that the NSA "is searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country," coupled with leaked documents published by the Guardian, seriously calls into question the accuracy of crucial statements made by government officials about NSA surveillance.

The government has previously tried to reassure the public about its use of FISA Amendments Act Section 702 surveillance practices, emphasizing that, under Section 702, the government may not “intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States." Indeed, the chair of the Senate Intelligence Committee Senator Feinstein, in a letter to constituents who wrote to her expressing concern about the NSA's spying program,said this: "[T]he government cannot listen to an American’s telephone calls or read their emails without a court warrant issued upon a showing of probable cause."

We’ve written before about the word games the government plays in describing its surveillance practices: “acquire,” “collect,” and “content” are all old government favorites. The New York Times report proves Feinstein statement is false, and it's clear it’s time to add “target” to the list of word games as well.

When “Target” Means Searching a Specific Person’s Communications

First, at least this much is clear: a “target” under the FAA must be (a) a non-US person and (b) not physically located within the United States. A “person,” for purposes of the FAA, includes individuals as well as “any group, entity, association, corporation, or foreign power.”  Under the FAA, the government can thus "target" a single individual (e.g., Vladimir Putin), a small group of people (e.g., Pussy Riot), or a formal corporation or entity (e.g., Gazprom).

So, when the NSA decides to “target” someone (or something), it turns its specific surveillance vacuum at them. The NSA then believes it can intercept and analyze all electronic communications of the target (telephone conversations, email conversations, chat, web browsing, etc) so long as the “target” is overseas and remains overseas. As others have noted, this includes conversations the “target” has with Americans, which would then be “incidentally” collected. Keep in mind this does not require a warrant or even the approval of a court, which is only one way Senator Feinstein's reassurance was demonstrably false. But there's still more.

When “Target” Means Searching Everyone’s Communications

Once a target is established, the NSA believes it can expand the sweep of its interception far more broadly than the communications of the particular, identified target. Notably, the NSA’sprocedures state (emphasis added):

[I]n those cases where NSA seeks to acquire communications about the target that are not to or from the target, NSA will either employ an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas, or it will target Internet links that terminate in a foreign country.

In plain English: the NSA believes it not only can (1) intercept the communications of the target, but also (2) intercept communications about a target, even if the target isn’t a party to the communication. The most likely way to assess if a communication is “about” a target is to conduct a content analysis of communications, probably based on specific search terms or selectors.

And that, folks, is what we call a content dragnet.

Importantly, under the NSA’s rules, when the agency intercepts communications about a target, the author or speaker of those communications does not, thereby, become a target: the target remains the original, non-US person. But, because the target remains a non-US person, the most robust protection for Americans’ communications under the FISA Amendments Act (and, indeed, the primary reassurance the government has given about the surveillance) flies out the window. If you communicate about a target of NSA surveillance, your citizenship is irrelevant: the only thing standing between you and NSA surveillance is your IP address or the fiber optic path through which your communications flow.

Privacy Protections Must Be Stronger than an IP Address or the Path our Communications Happen to Take

The NSA only limits this type of broad content dragnet in two ways: a filter based on IP addresses or directing its surveillance at “Internet links that terminate in a foreign country.”1

Presumably, the IP filter is used in circumstances where the NSA’s surveillance is being conducted on U.S. soil. The agency simply filters out known U.S. IP addresses and scans the content of the rest. But there are a host of reasons that an American’s IP address might not be representative of their location. First, there are a variety of privacy-enhancing technologies – like Tor or VPNs – that could easily make wholly domestic communications appear as though they were occurring overseas. Second, IP addresses, in general, are imperfect measures of a person’s location: if a large ISP (like, for example, AT&T) is assigned a block of IP addresses, an IP address assigned to someone in Canada one day could be assigned to an American the next, and vice versa. And all this, of course, says nothing about nationality or legal status: a given IP address says nothing about the citizenship of the person using the device.

The only other limitation on this type of content dragnet is targeting Internet links in foreign countries. Again, like IP filtering, this is not an effective way to ensure that Americans’ communications are not intercepted and analyzed. In particular, because third-party providers (like Google, Yahoo, or Microsoft) tend to have redundant and distributed operations around the world, there’s a very real chance that your wholly domestic email, sent between two U.S. citizens might travel and be "stored" on data centers around the world. Targeting an “Internet link” that terminates abroad would inevitably carry large amounts of purely "domestic" communications.

An Example: Targeting Vladimir Putin (and Everyone Else)

At this point, it might be useful to provide an example. Say the NSA wants to target Vladimir Putin, the President of Russia, under Section 702. Putin is (a) a non-US-person, (b) (usually) located outside the United States, and (c) would clearly be expected to communicate foreign intelligence information. He is thus eligible for targeting under Section 702. The NSA would then intercept Putin’s calls, emails, chats, and other communications (including those directed at the United States and involving United States citizens).

Under the NSA’s rules, though, the agency can also intercept all communications about Putin. To accomplish this, NSA presumably performs a content analysis -- probably occurring both within the United States and overseas -- of large swaths of communications, using deep packet inspection to root out electronic communications about Putin.

In this example, under the NSA’s procedures, a U.S. citizen sending an email about Putin’sfrequent, shirtless poses to another U.S. citizen could have their communications intercepted and analyzed by NSA under a variety of conditions:

• if they're outside the U.S.;
• if they're inside the U.S., using Tor, and their IP address looks like it's outside the U.S.;
• if they're inside the U.S., using a VPN, and their IP address looks like it's outside the U.S.;
• if they're inside the U.S. and their IP address doesn't accurately reflect their location for any host of reasons;
• if they're inside the U.S. and their communications are backed up or stored abroad.

In each of these examples, the NSA believes it has the authority to intercept your communications, even though in most examples the person doing the communicating is (1) a US person, (2) located within the United States, (3) communicating with someone within the United States, and (4) not communicating with the "target" of an investigation. While the NSA may not intercept every email about Putin’s shirtless poses, based on its procedures, it believes it has the authority. Such an interpretation of the government’s authority under the FAA violates the spirit, if not the letter, of the law. Not to mention the Constitution.

After a Full and Public Investigation, We Need to Rein in the NSA's Use of Section 702

Lately, the focus of the NSA debate has shifted to the NSA’s domestic associational tracking program — the collection and storage of millions of Americans call record information. And rightly so: the program is unconstitutional, and EFF has filed suit to stop it immediately. But Section 702 should not be forgotten: it needs attention ­— and reform —as well.  

As the debate continues, when Diane Feinstein tells you that “the government cannot listen to an American's telephone calls or read their emails without a court warrant issued upon a showing of probable cause,” she’s not telling you the truth: the government can read your emails without ever even asking a judge and without even attempting to demonstrate that probable cause exists, just so long as your emails have a “foreign” IP address or your communications happen to leave the country.

Our constitutional right to communicate without our government listening in has been fundamentally reinterpreted and diminished in secret: the NSA's procedures show that all that stands between government surveillance of our communication is an IP address. But the constitution demands more. Join us, and over 500,000 others, in calling on Congress to establish a special committee to investigate the NSA’s domestic spying operation, to rein in the laws the government uses to conduct this type of spying, and to hold elected officials accountable for misleading the American public.  

• 1.The NSA’s use of the term “internet links” is not clear, and the procedures don’t spell out precisely what they mean. We assume “internet link” to mean telecom switches and hubs located overseas.

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Ross Douthat on Steven Pinker

A clever essay by Ross Douthat on Steven Pinker's (alleged) scientism: The Scientism of Steven Pinker NYTimes (August 7, 2013)



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DSM & Botanical Psychology

Ian Hacking, Lost in the Forest London Review of Books (August 8 [sic], 2013) (on the DSM as a sad exemplar of botanical psychology).
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Why DNA Is Not an Infallible Indicator of Guilt or Innocence

Obasogie, High-Tech, High-Risk Forensics (Op-Ed), NYTimes (July 24, 2013):

SAN FRANCISCO — WHEN the police arrived last November at the ransacked mansion of the millionaire investor Raveesh Kumra, outside of San Jose, Calif., they found Mr. Kumra had been blindfolded, tied and gagged. The robbers took cash, rare coins and ultimately Mr. Kumra’s life; he died at the scene, suffocated by the packaging tape used to stifle his screams. A forensics team found DNA on his fingernails that belonged to an unknown person, presumably one of the assailants. The sample was put into a DNA database and turned up a “hit” — a local man by the name of Lukis Anderson.

Bingo. Mr. Anderson was arrested and charged with murder.

There was one small problem: the 26-year-old Mr. Anderson couldn’t have been the culprit. During the night in question, he was at the Santa Clara Valley Medical Center, suffering from severe intoxication.

...

In one famous case of crime scene contamination, German police searched for around 15 years for a serial killer they called the “Phantom of Heilbronn” — an unknown female linked by traces of DNA to six murders across Germany and Austria. In 2009, the police found their “suspect”: a worker at a factory that produced the cotton swabs police used in their investigations had been accidentally contaminating them with her own DNA.

Contamination is not the only way DNA forensics can lead to injustice. Consider the frequent claim that it is highly unlikely, if not impossible, for two DNA profiles to match by coincidence. A 2005 audit of Arizona’s DNA database showed that, out of some 65,000 profiles, nearly 150 pairs matched at a level typically considered high enough to identify and prosecute suspects. Yet these profiles were clearly from different people.

There are also problems with the way DNA evidence is interpreted and presented to juries. In 2008, John Puckett — a California man in his 70s with a sexual assault record — was accused of a 1972 killing, after a trawl of the state database partially linked his DNA to crime scene evidence. As in the Anderson case, Mr. Puckett was identified and implicated primarily by this evidence. Jurors — told that there was only a one-in-1.1 million chance that this DNA match was pure coincidence — convicted him. He is now serving a life sentence.

But that one-in-1.1 million figure is misleading, according to two different expert committees, one convened by the F.B.I., the other by the National Research Council. It reflects the chance of a coincidental match in relation to the size of the general population (assuming that the suspect is the only one examined and is not related to the real culprit). Instead of the general population, we should be looking at only the number of profiles in the DNA database. Taking the size of the database into account in Mr. Puckett’s case (and, again, assuming the real culprit’s profile is not in the database) would have led to a dramatic change in the estimate, to one in three.

...

DNA forensics is an invaluable tool for law enforcement. But it is most useful when it corroborates other evidence pointing to a suspect, or when used to determine whether any two individual samples match, like in the exonerations pursued by the Innocence Project.

But when the government gets into the business of warehousing millions of DNA profiles to seek “cold hits” as the primary basis for prosecutions, much more oversight by and accountability to the public is warranted. For far too long, we have allowed the myth of DNA infallibility to chip away at our skepticism of government’s prosecutorial power, undoubtedly leading to untold injustices.

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N.B. The thesis of the above article cuts two ways: The discovery of non-matching DNA is also not always powerful evidence of innocence.

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Was Trayvon Martin an "Innocent Child"?

This conservative commentator - Shelby Steele - thinks not:

"Why did the civil-rights leadership use its greatly depleted moral authority to support Trayvon Martin? This young man was, after all, no Rosa Parks—a figure of indisputable human dignity set upon by the rank evil of white supremacy. Trayvon threw the first punch and then continued pummeling the much smaller Zimmerman. Yes, Trayvon was a kid, but he was also something of a menace. The larger tragedy is that his death will come to very little. There was no important principle or coherent protest implied in that first nose-breaking punch. It was just dumb bravado, a tough-guy punch."
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New Jersey Decision on Cell Phone Location Tracking

State v. Thomas W. Earls (A-53-11) (068765) (July 18, 2013) (7-0):

In this appeal, we consider whether people have a constitutional right of privacy in cell-phone location information. Cell phones register or identify themselves with nearby cell towers every seven seconds. Cell providers collect data from those contacts, which allows carriers to locate cell phones on a real-time basis and to reconstruct a phone’s movement from recorded data. Those developments, in turn, raise questions about the right to privacy in the location of one’s cell phone.

   Historically, the State Constitution has offered greater protection to New Jersey residents than the Fourth Amendment. 3Under settled New Jersey law, individuals do not lose their right to privacy simply because they have to give information to a third-party provider, like a phone company or bank, to get service. See State v. Reid, 194 N.J. 386, 399 (2008). In addition, New Jersey case law continues to be guided by whether the government has violated an individual’s reasonable expectation of privacy.

...

Because we find that cell-phone users have a reasonable expectation of privacy in their cell-phone location information, and that police must obtain a search warrant before accessing that information, we reverse the judgment of the Appellate Division. To determine whether the emergency aid doctrine or some other exception to the warrant requirement applies to the facts of this case, we remand the matter to the Appellate Division for further proceedings.

... We granted defendant’s petition for certification “limited to the issues of the validity of defendant’s arrest based on law enforcement’s use of information from defendant’s cell phone provider about the general location of the cell phone and the application of the plain view exception to the warrant requirement.” 209 N.J. 97 (2011). 
... Article I, Paragraph 7 of the New Jersey Constitution is nearly identical to the Fourth Amendment. Despite the similarity in language, the protections against unreasonable searches and seizures “are not always coterminous.” State v. Hunt, 91 N.J. 338, 344 (1982). ...
...

For the reasons discussed, we conclude that Article I, Paragraph 7 of the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone. Users are reasonably entitled to expect confidentiality in the ever-increasing level of detail that cell phones can reveal about their lives. Because of the nature of the intrusion, and the corresponding, legitimate privacy interest at stake, we hold today that police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.

...

Our ruling today is based solely on the State Constitution. We recognize that Jones and Smith [U.S. Supreme Court decisions interpreting the 4th Amendment to the U.S. Constitution], to the extent they apply,would not require a warrant in this case.

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Professor Jonathan Turley on the George Zimmerman Trial

In Why was Zimmerman overcharged? USA Today (July 14, 2013), Jonathan Turley writes:

"With the verdict, the Zimmerman case entered the realm of legal mythology -- a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and sound bites long ago programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.

"Criminal cases make for perfect and often dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters -- discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. Zimmerman and Martin became proxies in our national debate over race. There was little patience or need for the niceties of rules of proof and adjudication."

Turley then recounts a variety of blunders by the prosecution but concludes:

"Ultimately, it was the case and not the prosecutors that were weak."

Turley then explains why he thinks the evidence did not support guilt beyond a reasonable doubt. But he ends with this observation:

"Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law."

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