N.J. court says users can expect privacy from Internet providers

NEWARK, N.J. - Internet service providers must safeguard personal information about users in New Jersey - even when the police ask for it - the state Supreme Court ruled yesterday.

New Jersey's highest court said a valid subpoena was required before Internet providers could disclose private information to anyone.

In doing so, the court found the New Jersey constitution gives greater protection against unreasonable searches and seizures than the U.S. Constitution.

The 7-0 ruling upheld lower court decisions that restricted police from obtaining the identity of a Cape May County woman accused of retaliating in 2004 against her boss after an argument by changing her employer's access codes to a supplier's Web site.

Police obtained the identity of Shirley Reid through her Internet provider, Comcast, by tracing an Internet footprint left by her computer. The footprint consisted of an Internet protocol address, often called an IP address, but the user could only be identified through subscriber information held by Comcast.

Police obtained a subpoena for the data from a municipal court, but higher courts said a grand jury subpoena was necessary because the crime Reid faced was an indictable offense.

The state Supreme Court said police can still obtain such information, but that they must seek a valid grand jury subpoena to get it and then seek a new indictment.

Meanwhile, the court said Reid's 2005 indictment on a charge of theft by computer cannot stand unless prosecutors have enough proof without the suppressed evidence.

The court is the first in the nation to recognize that anonymous Internet users have a reasonable expectation of privacy, said Grayson Barber, a lawyer who represented several organizations that petitioned the court for such a finding, including the American Civil Liberties Union, Electronic Frontier Foundation and the Electronic Privacy Information Center

"The reality is that people do expect a measure of privacy when they use the Internet," Barber said.

A message left for Reid's lawyer was not immediately returned.

Deputy State Attorney General Steven A. Yomtov, who argued the data should not have been suppressed, said they were still pleased that the court would allow prosecutors to seek a grand jury subpoena for the information without giving notice to the subscriber beforehand.

"We're not surprised with the court's ruling and finding," Yomtov said, noting the decision was consistent with prior rulings on telephone and bank records.

Cape May County Prosecutor Robert L. Taylor said his office would seek a new indictment and get a grand jury subpoena.

The high court held that citizens "have a reasonable expectation of privacy" under the state's constitution in the information provided 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," Chief Justice Stuart Rabner wrote for the unanimous court.

Prosecutors can still pursue the data. "Suppression under the circumstances present here does not mean that the evidence is lost in its entirety. Comcast's records existed independently of the faulty process the police followed. And unlike a confession coerced from a defendant in violation of her constitutional rights, the record does not suggest that police conduct in this case in any way affected the records Comcast kept," Rabner wrote.

"As a result, the records can be reliably reproduced and lawfully reacquired through a proper grand jury subpoena," he said.

A Washington lawyer who handles Internet litigation, Megan E. Gray, said the ruling "seems to be consistent with a trend nationwide, but not a strong trend."

"It's contrary to what is happening with rights of privacy at the federal level," Gray said. "But it's all over the board for the states, with a mild trend toward protecting this information."