New Jersey Court: Internet Users Legally Entitled to Privacy

Computer users in New Jersey can expect that personal information they give their Internet service providers be treated as private, a state appellate court decided Monday in the first such case considered in the state.

As a result, New Jersey and several other states give greater privacy rights to computer users than most federal courts, and law enforcement officers in New Jersey need to obtain valid subpoenas or search warrants to obtain the information.

The court ruled that a computer user whose screen name hid her identity has a "legitimate and substantial" interest in anonymity.

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"Yes, this indicates that New Jersey, like a lot of states, is ahead of the curve on Internet privacy," said Kevin Bankston, a staff attorney with the Electronic Frontier Foundation, a San Francisco-based digital rights group.

Bankston also praised the decision for recognizing anonymity as a core free speech right.

The 3-0 ruling by an appellate panel stems from the indictment of Shirley Reid, who was suspected of breaking into the computer system of her employer in Cape May County in 2004 and changing its shipping address and password for suppliers.

The decision upholds a lower court ruling suppressing information from Reid's Internet service provider that linked her with a screen name that did not reveal her identity.

Lower Township police obtained the information after having the township's Municipal Court administrator issue a subpoena to the provider, Comcast Internet Service (CMCSA).

However, the appellate panel found that the subpoena was invalid because the crime being investigated was not within that court's jurisdiction and the subpoena was not issued, as required, in connection with a judicial proceeding.

And since "New Jersey is among the few states to have found an implied right to privacy in its state charter," a proper subpoena or search warrant is required to obtain private information, the appeals court decided.

It was not immediately known if the ruling would lead to the dismissal of the one-count indictment on computer theft.

Cape May County Prosecutor Robert L. Taylor said no decision had been made on whether to appeal the ruling.

Messages left for Reid's lawyer were not immediately returned.

By using a coded screen name the "defendant manifested an intention to keep her identity publicly anonymous. She could have used her own name or some other ISP address that would have readily revealed her identity, but she did not. Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast," Appellate Judge Harvey Weissbard wrote for the panel.

The court, however, did not issue blanket protection for computer-based criminals.

"Just as with telephones or bank records, computers cannot be used with impunity for unlawful purposes. When there is probable cause to believe unlawful use has occurred, law enforcement has the tools to respond," the court said.

Federal courts have held the Internet subscribers have no right of privacy under Fourth Amendment protections against illegal search and seizure regarding identifying information on file with their service providers. That stems from U.S. Supreme Court decisions which held that a person cannot expect privacy for information voluntarily given to others, the New Jersey court said.

"However, the right to privacy of New Jersey citizens under our State Constitution has been expanded to areas not afforded such protection under the Fourth Amendment," the court added.

The ruling was endorsed by Jennifer Stisa Granick, executive director of the Center for Internet and Society at Stanford Law School in California, because it recognizes that Internet communications are private even though they flow through third parties.

"It's a much better balance than everything being fair game just because you use the Internet," Granick said.