Article 43

 

Friday, April 25, 2008

A State Constitutional Right To Privacy

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Federal Fourth Amendment protection of non-content information online DOESN’T EXIST in the U.S. The idea is that because you’ve given that information to your ISP (a third party) in order to “complete the call” (in telephone terms), you dont have any reasonable expectation of PRIVACY in it.  The STORED COMMUNICATIONS ACT allows ISPs serving the public to give that non-content information voluntarily to any private person, and it doesn’t take much process for the government to compel its disclosure.
- Susan Crawford

N.J. justices call e-privacy surfers’ right
Ruling on warrant trumps top U.S. court’s decisions

By Tom Hester
New Jersey Star-Ledger

The Supreme Court of New Jersey became the first court in the nation yesterday to rule that people have an expectation of privacy when they are online, and law enforcement officials need a grand jury warrant to have access to their private information. 

In state proceedings, the ruling will take precedence over what attorneys describe as weaker U.S. Supreme Court decisions that hold there is no right to privacy on the internet.

“The New Jersey Supreme Court is the first in the nation to recognize a reasonable expectation of privacy when using the internet anonymously,” said Trenton-based attorney Grayson Barber, who represented six privacy rights organizations as a friend of the court. “‘I think this reflects the reality that most people do expect a measure of privacy when they are using the internet anonymously.”

The unanimous seven-member court held that police do have the right to seek a user’s private information when investigating a crime involving a computer, but must follow legal procedures. The court said authorities do not have to warn a suspect that they have a grand jury subpoena to obtain the information.

Writing for the court, Chief Justice Stuart Rabner said: “We now hold that citizens have a reasonable expectation of privacy protected by Article I ... of the New Jersey Constitution, in the subscriber information they provide to Internet service providers—just as New Jersey citizens have a privacy interest in their bank records stored by banks and telephone billing records kept by phone companies.”
Barber said most people use the internet like a phone, making personal—sometimes sensitive—transactions that they don’t believe the police will be able to access.

“This decision reflects the reality of how ordinary people normally use the internet,” he said. “‘It’s very nice to have the court recognize that expectation is reasonable.”

The court ruled in the case of Shirley Reid of Lower Township, Cape May County, who was charged with second-degree computer theft for hacking into her employer’s computer system from her home computer. Township police obtained her identity from Comcast by using a municipal court subpoena. The Supreme Court held that law enforcement had the right to investigate her but should have used a grand jury subpoena.

A state Superior Court in Cape May Court House suppressed the evidence based on the use of the wrong subpoena, and a state appeals court upheld the action when the Cape May County Prosecutor’s Office appealed.

Reid was investigated after her employer, Jersey Diesel of Lower Township, was notified by a business supplier in 2004 that someone had accessed and changed both the multi-digit numbers that make up the company’s IP address and password and had created a non-existent shipping address. When the owner, Timothy Wilson, asked Comcast for the IP address of the person who made the changes, the internet provider declined to comply without a subpoena.

Wilson suspected that Reid, an employee who had been on disability leave, could have made the changes. On the day the changes were made, Reid had returned to work, argued with Wilson and left.

When the police obtained a municipal court subpoena and served it on Comcast, the internet provider identified Reid, her address and telephone number, type of service provided, e-mail address, IP numbers, account number and method of payment. In 2005, a Cape May grand jury returned an indictment charging Reid with computer theft.

Lee Tien, an attorney for the Electronic Frontier Foundation, said the decision is an important ruling on the state constitution.

“Obviously, the federal law is terribly weak in this area because of bad decisions in recent years,” Tien said. “The federal Fourth Amendment is inadequate for modern privacy issues. New Jersey interprets its constitution to be along the line that ordinary people have a fundamental expectation of privacy.”

Writing for the court, Rabner said: “Law enforcement officials can satisfy that constitutional protection and obtain subscriber information by serving a grand jury subpoena on an ISP without notice to the subscriber.” Cape May Prosecutor Robert Taylor said he expects to take the case to a new grand jury and seek a new indictment against Reid.

SOURCE

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US Court Says IP Addresses Are Private
Outlaw News
April 24, 2008

A US COURT HAS RULED that users have a “reasonable expectation of privacy” in their internet surfing records and that police must obtain warrants from higher than usual courts in order to force ISPs to hand over records.

The Supreme Court of the state of New Jersey said that information about a person’s use of the internet was so private that police there cannot order ISPs to release surfing details of suspects with a municipal court subpoena. They must receive a grand jury subpoena, it said.

“The court holds that citizens have a reasonable expectation of privacy in the subscriber information they provide to internet service providers,’’ said the Court’s ruling. “Law enforcement officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to the subscriber.”

“Individuals need an ISP address in order to access the internet,” said Chief Justice Rabner in his ruling. “However, when users surf the web from the privacy of their homes, they have reason to expect that their actions are confidential. Many are unaware that a numerical IP address can be captured by the websites they visit. More sophisticated users understand that that unique string of numbers, standing alone, reveals little if anything to the outside world. Only an internet service provider can translate an IP address into a users name.”

The case involved Shirley Reid, who was accused of hacking into her employer’s computer system.

After Reid’s ISP, Comcast, handed over details of her account, including the IP address from which she accessed the internet, she was found guilty of computer theft in connection with the hacking incident.

Reid overturned that decision on appeal and at the Supreme Court of New Jersey stage, arguing that the evidence should be suppressed.

Reid’s lawyers had argued that a person should be informed when a subpoena is issued permitting the release of their telecommunications subscription details so that they can oppose the move. The Supreme Court of New Jersey, though, said that as long as the subpoena is from a grand jury the information can be released without the knowledge or consent of the user.

“Modern technology has raised a number of questions that are intertwined in this case: to what extent can private individuals ‘surf’ the ‘Web’ anonymously? Do internet subscribers have a reasonable expectation of privacy in their identity while accessing internet websites? And under what circumstances may the State learn the actual identity of internet users?” said Chief Justice Rabner in his ruling.

“We decline to adopt a requirement that notice be provided to account holders whose information is subpoenaed,” he said. “For obvious reasons, notice could impede and possibly defeat the grand jury’s investigation. Particularly in the case of computers, unscrupulous individuals aware of a subpoena could delete or damage files on their home computer and thereby effectively shield them from a legitimate investigation.”

The Court said that although Reid was successful in having the municipal warrant-obtained evidence suppressed, the police were not barred from approaching Comcast again and obtaining the records using an appropriate warrant.

SOURCE

Posted by Elvis on 04/25/08 •
Section Privacy And Rights
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