New Jersey Attorney Law Review Blog

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

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

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

The appellate panel's unanimous ruling stemmed 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.

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 because "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.

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 said it was not issuing 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 that 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 that 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.

A trial court judge's actions in interrupting a litigant's testimony during cross-examination to warn him about possible criminal implications if his testimony revealed tax fraud was improper, the Appellate Division held in All Modes Transport Inc. v. Hecksteden, A-0361-05T5, December 27, 2006. Combined with this warning, the trial court suggested the parties settle the case. After this exchange by the trial judge, the defendants agreed to settle the case for a substantial sum of money. Shortly thereafter, the defendants filed a motion requesting the trial court to vacate the settlement arguing that they were coerced into the settlement by the trial judge's threat of criminal prosecution. The trial court denied defendants' motion, concluding that the settlement agreement was not procured by coercion. The trial court was of the opinion that it had a duty to warn to warn the defendant that continuation of his testimony on cross-examination could result in self-incrimination.

The defendants appealed, and the Appellate reversed the decision and remanded the matter back to the trial court for reconsideration of whether the defendants voluntarily entered into the settlement. In so ruling, the Appellate Division remarked that the proper judicial course for the trial judge to have followed would be to leave the matter of suspicion of criminality for such attention at the end of the case, including referral to the appropriate prosecuting authority. The appellate court further commented that it was the responsibility of defendant's counsel, not the trial court, to advise him about his legal rights and potential liabilities flowing from his testimony. Evaluating the impact of the trial judge's warning, the Appellate Division believed that such statements had to have exerted substantial pressure on him to settle the case in order to avoid criminal prosecution.