Big Victory for Internet Privacy; Grand Jury Subpoena Needed for User Information

A state Supreme Court ruling that makes Internet subscriber information off-limits to police without a grand jury subpoena is a landmark ruling that will impact Web users for decades, privacy advocates said Monday.

"This is, in my opinion, the most significant decision in years, because of the significance of Internet privacy in everyone’s lives," said attorney Rubin Sinins, who brought the case to the court.

The justices ruled on Monday that municipal court subpoenas can no longer be used for obtaining Internet subscriber information. Advocates said the 7-0 decision is the first in the nation to recognize the privacy rights of anonymous Internet use, even going beyond protections guaranteed under the U.S. Constitution.

Bergen County First Assistant Prosecutor Bill Galda said the ruling will encourage local police departments to work with county prosecutors to obtain grand jury subpoenas.

The only problem, he said, is that a grand jury can only be convened for indictable crimes, which means that local police investigating a disorderly persons offense, such as online harassment, will not be able to obtain a subpoena.

In such cases, police will have to use traditional detective work without the benefit of Internet subscriber information, he said.

Sinins represented Shirley Reid of Cape May County, who prevailed in Monday’s decision against police who obtained her personal information from the Internet provider, Comcast, and charged her with computer theft.

Reid’s boss, Timothy Wilson, reported in August 2004 that someone had used a computer to change his company’s shipping address and password for its suppliers. Wilson obtained the Internet protocol address of the person who made the changes, but Comcast refused to divulge the user’s identity without a subpoena.

Wilson then contacted local police, who obtained a subpoena from a municipal court judge. After being served with the subpoena, Comcast officials disclosed Reid’s address, phone number, account number, e-mail address and method of payment. Reid argued that police violated her privacy rights by obtaining her information through a faulty subpoena.

Prosecutors argued that once an Internet user provides personal information to the Internet provider, there exists no expectation of privacy, likening it to a return address on a letter.

But lower courts agreed with Reid and ruled that the subpoenaed information cannot be used against her. On Monday, the state’s highest court also sided with her.

"When users surf the Web from the privacy of their homes, they have reason to expect that their actions are confidential," the justices wrote.

The case attracted the attention of privacy advocates, many of whom were represented by the American Civil Liberties Union. The groups asked the court to recognize that Internet users expect service providers to keep their information private.

Reid and the ACLU also argued that when police seek subscriber information from Internet companies, the subscriber should be notified.

The justices rejected that argument, saying that notifying the target of an investigation could defeat the purpose of police work.

That part of the ruling, said state Deputy Attorney General Steven Yomtov, is a victory for law enforcement.

"In such cases, the computer and the files are in the user’s possession and can be destroyed [if the suspect is notified]," said Yomtov, who argued the case on behalf of the state.

Yomtov also pointed out that the decision, while suppressing the evidence obtained through the defective subpoena, allows police to obtain a proper one and go after the information again.

That possibility for a do-over differs from how courts have treated "tainted evidence." If police search a house without a warrant and find incriminating evidence, for instance, that evidence is rendered "tainted" and cannot be used in court. Police will not get a second chance to obtain a search warrant and re-enter the house to look for the same evidence.

In Reid’s case, the justices said police should get a second try because the subscriber information remains untainted despite the defective municipal court subpoena.

Grayson Barber, an attorney who represented the ACLU, said the ruling Monday does not go far enough in that respect. Because suppression of "tainted evidence" is meant to deter police misconduct, there should be no do-overs, she said.

Prosecutors have not said whether they will appeal the ruling further.

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What it means

Internet users: Information supplied to an Internet service provider such as name and address cannot be accessed by police without a grand jury subpoena.

Law enforcement: Agencies can’t rely on municipal court subpoenas to access user data.

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E-mail: markos@northjersey.com

(c) 2008 Record, The; Bergen County, N.J.. Provided by ProQuest Information and Learning. All rights Reserved.