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NJ Supreme Court Rules For Internet Privacy 84

Posted by timothy from the now-let's-keep-isp-and-bank-records-private-too dept.
dprovine writes "The New Jersey Supreme Court has ruled that ISPs can't release customer information without a warrant. The unanimous decision reads in part '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.'"
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NJ Supreme Court Rules For Internet Privacy More

NJ Supreme Court Rules For Internet Privacy

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  • Precedence in US Vs Forrester (Score:4, Informative)

    by eldavojohn ( 898314 ) * <eldavojohn@gm a i l . com> on Tuesday April 22, 2008 @07:56AM (#23156878) Journal
    I'm not a lawyer but I thought precedence was set for this in US Vs Forrester [arstechnica.com] where a $10 million drug operation had their e-mail, phone and IP address records obtained from their ISP without a warrant. They were guilty but not until the court case.

    This happened just last year. How are they going to reconcile these two rulings?

    • Re:Precedence in US Vs Forrester (Score:5, Informative)

      by dreamchaser ( 49529 ) on Tuesday April 22, 2008 @08:04AM (#23156932) Homepage Journal
      Right now they are two different things. US vs Forrester was a ruling by the 9th Circuit Court and this recent ruling was the NJ State Supreme Court. If they come into conflict it will have to go to the US Supreme Court. Incidentally, the 9th Circuit is one of the most overturned appeals courts in recent years.

      I am guessing this issue will one day wind up before the US Supreme Court. We know that Congress won't address the issue, so it will probably be left to the lawyers in black robes.

      • Re: (Score:2, Interesting)

        by andb52 ( 854780 )
        Even if there is an apparent conflict between the two rulings, such a contradiction will not necessarily be referred to the US Supreme Court. Remember, the New Jersey ruling was under the New Jersey Constitution, which provides far more rights to citizens than the United States Constitution. As such, even if there is not federal right to privacy with one's ISP, there still could be a right to privacy within the state of New Jersey.

        • Re: (Score:3, Insightful)

          by dreamchaser ( 49529 )
          And that is exactly the kind of conflict that will bring it to the Supremes. The Feds will try to get information without a warrant and the conflict will ensue.

          • Re:Precedence in US Vs Forrester (Score:4, Interesting)

            by tinkerghost ( 944862 ) on Tuesday April 22, 2008 @08:34AM (#23157210) Homepage

            And that is exactly the kind of conflict that will bring it to the Supremes. The Feds will try to get information without a warrant and the conflict will ensue.

            Not really, State & Federal courts really move in different circles. The Feds will get info without the warrant & none of the proceeds will be usable for any ancillary state charges, but it won't affect the federal case.

            The interesting thing to me is that the court ruled that the problem was with the type of seupona used. Per the article, the cops went & got one from a judge, but the court ruled that they needed to go to a grand jury instead. That seems a bit odd to me, it was my understanding that the GJ was usually brought in after most of the investigation was done, not at the beginning.

          • Re:Precedence in US Vs Forrester (Score:4, Interesting)

            by moeinvt ( 851793 ) on Tuesday April 22, 2008 @10:14AM (#23158746)
            "The Feds will try to get information without a warrant and the conflict will ensue."

            I've been waiting to see this type of conflict. I'm surprised that it would happen in New Jersey, but many states have their own Constitutions which define the Rights of their citizens even more broadly than what's in the U.S. Constitution. IANAL, but if I have certain Rights under my State Constitution, the fact that the same Rights are not specifically elaborated in the U.S. Constitution shouldn't mean that agents of the Federal government are free to trample on them.

            It would be great if New Jersey had some guts and empowered the NJ State Police to arrest Federal agents for the crime of illegally spying on NJ residents.

            • State and Federal citizen's rights (Score:4, Insightful)

              by Beryllium Sphere(tm) ( 193358 ) on Tuesday April 22, 2008 @10:48AM (#23159220) Journal
              As a historical note, that's the way the Founders meant things to work.

              The Federalist Papers tried to reassure people that the proposed new Federal government couldn't succeed as a tyranny because the states would defend the rights of state citizens.

              This has been largely forgotten since the national government had to step in and override state-level oppression of African-Americans.

            • Re: (Score:3, Insightful)

              by Ioldanach ( 88584 )

              IANAL, but if I have certain Rights under my State Constitution, the fact that the same Rights are not specifically elaborated in the U.S. Constitution shouldn't mean that agents of the Federal government are free to trample on them.

              That's a problem that's existed since the time the Constitution was written. The Bill of Rights was a compromise because the Constitution is supposed to be a document saying very specifically what the government can do. By adding in a list of citizens rights they can't infri

              • Re: (Score:2)

                by Ozric ( 30691 )
                You mean States Rights, as in kick your ass back to the Civil War, States Rights ?

                Just Checking
                • Yes, I'm referring to States Rights. Though I don't know what the Civil War has to do with that, exactly. That war was largely fought over interstate trade, intrastate trade and ostensibly slavery, one of which was already enshrined in constitutional law, one was handled with an amendment so that the states could still retain those States Rights, and one was sort of ignored and slowly brought under the purview of interstate trade for most cases, where it doesn't belong.

                  • Re: (Score:2)

                    by Ozric ( 30691 )
                    The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

                    This amendment was the basis of the doctrine of states' rights that became the rallying cry of the Southern states.

                    I see it worked out well for them.
                    • It didn't work out well for them in part because some of the rights they wanted were not theirs to take (interstate commerce) or ended up later as the items enshrined in the constitution (prohibition on slavery). It doesn't mean the concept of States Rights itself is a bad one.
      • While the 9th circuit gets frequently overturned, it's usually for it's "liberal" leaning. Since this case supported the federal prosecutor, and mainly decided that there was no constitutional case to begin with, I doubt the case has much to fear from the current supreme court, even if it accepts it for review.

      • Re:Precedence in US Vs Forrester (Score:5, Informative)

        by Ardeaem ( 625311 ) on Tuesday April 22, 2008 @09:20AM (#23157912)

        Incidentally, the 9th Circuit is one of the most overturned appeals courts in recent years.
        God, this meme needs to die. The 9th circuit also has a very highest number of cases. When you look at the numbers as proportions, the 9th Circuit isn't out of line.

        • Re: (Score:2)

          by AuMatar ( 183847 )
          Not only is it not out of line, they actually have one of the lowest overturn percentages. But truth has never stopped the right from making a talking point- see also WMDs, liberal media, etc.
      • Would any lawyers care to opine about whether United States vs. Miller applies here?

        In that case (425 U.S. 435, 442 (1976)) the Supreme Court ruled that phone records weren't private because they were information the customer voluntarily disclosed to the phone company that the phone company employees had routine access to.

        Don't flame me, I didn't say it was _right_.
    • The difference here is that this is State court, not Federal court. This ruling will have no effect on any Federal case made in or against citizens of New Jersey. It does have precedence over any State or Municipal actions made in New Jersey.

  • Sure, privacy is nice (Score:5, Funny)

    by BadAnalogyGuy ( 945258 ) <BadAnalogyGuy@gmail.com> on Tuesday April 22, 2008 @07:57AM (#23156880)
    But those poor folks still have to live in New Jersey.

    • Re: (Score:1, Interesting)

      by account_deleted ( 4530225 )
      Comment removed based on user account deletion

      • Re:Sure, privacy is nice (Score:5, Funny)

        by BadAnalogyGuy ( 945258 ) <BadAnalogyGuy@gmail.com> on Tuesday April 22, 2008 @08:10AM (#23156998)
        Hey, you're from Jersey? I'm from Jersey too! What exit?
        • Not surprised that this decades-old joke was modded funny, but what's really interesting is that if you actually do meet someone from NJ and they're from a tiny town that you've never heard of (we have hundreds of those), asking "what exit" really is a great reference system between NJ-ians.

          We have two major highways that run north-south, and I'd guess at least 80% of our population lives within 20 miles of one of them. Telling someone which exit you're near just gives them an idea of where your hometown

          • Two major North-South highways? Are we still trying to keep 295 a secret? For southern Jersey folks, the Turnpike's for tourists and suckers. Unless you're heading north of Princeton, there's no reason to touch that cop-infested pothole fantasy road.

            Still though, if you took away the areas near NYC, you'd have a hard time finding another state in the nation with a road system as good as New Jersey's.

            Unfortunately, the roads within the Elizabeth-Paterson-Weehawken area resemble some sort of Escherian Triangl
        • 1.

      • Maybe if you people actually drove a few miles AWAY from the turnpike and parkway, and NYC ..
        A few miles away? You mean Pennsylvania, Delaware, and the Atlantic? JustKidding Exit 63! Baby!
      • >>>"Maybe if you people actually drove a few miles AWAY from the turnpike and parkway, and NYC in general and actually saw the rest of our state, you would see why we all think its great."

        The southern part of New Jersey (low population) is nice. Ditto the portion bordering the Pennsylvania line. But the rest of it? Pass.

        Now Maryland... there's a nice state.

        • Re: (Score:3, Informative)

          by account_deleted ( 4530225 )
          Comment removed based on user account deletion
          • You don't drive through Baltimore. You visit the Inner Harbor, enjoy a few drinks at Fells Point, and then leave. Basically, you stay close to the water where it's safe & well-policed. Ditto D.C.

            And, New Jersey is not three times larger than Maryland. It takes about 3 hours to drive across Jersey (northward).... it takes almost 5 hours to drive from Maryland's shoreline to the western mountains. So I'd say Maryland has greater breadth, and about the same area as NJ.

      • Ssshhh, don't tell them!

        ... none of the NYC snobs know about the pine barrens or the sourlands or the turkey farms, orchards, Amish markets, etc... I'm a lot closer to a tractor dealership than I am to a refinery.

      • Re: (Score:2)

        by CSMatt ( 1175471 )
        I hear New Jerseyians don't have to pump their own gas.

        That must be sweet.
        • That's true, and yet we still have one of the lowest average prices for gas in the country.

          Sometimes I still get out and pump my own, though, just because it's quicker and I'm used to doing it, having lived in other states.

    • Re: (Score:2)

      by kellyb9 ( 954229 )
      New Jersey - you mean the armpit of America, right?

  • EULA (Score:2, Insightful)

    by techpawn ( 969834 )
    But what if the ISP puts some "fine print" in the EULA that says that they CAN give your information (IP address and/or more) to third party and that by accepting you consent?

    just as New Jersey citizens have a privacy interest in their bank records stored by banks and telephone billing records kept by phone companies
    If the ISP can hide behind the EULA as a contract how long before banks and telecoms jump on this bandwagon?

    • Re: (Score:2)

      by esocid ( 946821 )
      It still doesn't hold water if it is in a police investigation, or illegal for that matter. They can make you sign something that says they have the right to kill you if you are late on 2 or more payments but that doesn't circumvent the law.

    • Re:EULA (Score:4, Insightful)

      by ArwynH ( 883499 ) on Tuesday April 22, 2008 @08:36AM (#23157234)

      What EULA? They don't license you anything. This isn't software we are talking about you know. It's a contract you sign with your ISP. Their services in exchange for your money.

      On the less pedantic side, do you really think the ISPs want to give your data away? There is no profit in doing so, in fact it might even cause customer loss, which is bad for business. No, the reason they give out your data is because they think they have a legal obligation to do so. Now the court has said it isn't, so they won't.

    • A contract is invalid if it violates the law.

    • Re: (Score:3, Insightful)

      by jafiwam ( 310805 )

      If the ISP can hide behind the EULA as a contract how long before banks and telecoms jump on this bandwagon?

      Zero days. Banks are, and have been for a long time, training various staff members how to scan through account history and locate "suspicious" (as defined by the feds) activity.

      It's called the "Know your customer" campaign.

      And, since it's the bank data, the can do this as often and however they want, hand the data over as a friendly tip and there's not a goddamn thing you can do about it. (Aside from not use banks, which will probably get you on some other list.)

      I know this, because I helped devel

      • Re: (Score:2, Insightful)

        by Dusty00 ( 1106595 )
        Two items of interest (disclaimer: I'm a former employee of the banking industry):

        Banker's aren't trained to look for suspicious items in the invasive sense that you're suggesting. They don't check to see if you've made any purchases to "ImprovisedExplosiveSupplies.com". The suspicious activity they're looking for are related to money laundering. The "know your customer" campaign at most banks was related to some of the PATRIOT Act requirements imposed post 9/11 (and unlike most of the PATRIOT Act th
  • So next time they'll get the correct warrant-- and STILL toss her butt in jail. I can live with that. As a creepy aside, I believe I went to high school with this chick.
  • AT&T's main NOC is in NJ. This is the NOC that handles most of their T1 traffic and troubles. They also have a smaller one in Kentucky, but the main one is in New Jersey.
  • Comcast at least, won't now release subscriber information without a subpoena.This ruling requires that a grand jury must issue the subpoena not a municipal court. This raises the barrier quite a bit. The ruling is at:http://www.judiciary.state.nj.us/opinions/supreme/A-105-06%20State%20v%20Shirley%20Reid.pdf
    • Comcast is a joke as far as security is concerned. Caught with their fingers in the pie too many times to be trusted anymore. Trusting them with anything seems to mean you are far too naive to be using the internet.

  • Text of ruling (Score:2, Informative)

    by Sarcileptic ( 1141523 )
    The text of the NJ court ruling is here: http://abajournal.com/files/A-105-06_State_v_Shirley_Reid.pdf [abajournal.com]

  • Also interesting for what the court did *not* do (Score:3, Informative)

    by BendingSpoons ( 997813 ) on Tuesday April 22, 2008 @09:21AM (#23157916)
    At least from my perspective. New Jersey courts are particularly active in holding that our State Constitution offers more protection than the federal constitution. (See State v. Nyhammer, 396 NJ Super 72, for a typically bizarre reading of the Fifth Amendment.*)

    In this case, an appellate court had previously held that the New Jersey state constitution grants a broad-based right to "informational privacy." Some state constitutions explicitly grant a right to privacy; NJ doesn't, but the Court reads our constitution as having one anyway. And then the appellate court expanded this judicially-granted right to include "informational privacy." The NJ Supreme Court rejected this expansion, although they said that they might change their minds if technology progresses to the point where IP addresses are more freely available.

    All in all, I'm happy they ditched the Appellate Division's interpretation. I liked the idea of informational privacy, but I didn't like it coming through the courts.

    *In that case, police officers read Nyhammer his Miranda rights. Nyhammer waived his rights, signed the Miranda card, and confessed to molesting an 11-year old girl. The appellate court held that Nyhammer's fifth amendment rights were violated; although he waived his rights, he didn't know at the time that he was a suspect. Therefore, his waiver wasn't really knowing and voluntary, and the court overturned his conviction. Talk about an expansive reading of a right against self-incrimination.

  • Guilty but let go (Score:5, Insightful)

    by mlwmohawk ( 801821 ) on Tuesday April 22, 2008 @09:21AM (#23157936)
    As a card carrying member of the ACLU, I regret this sort of case, but it is never the less the proper outcome. For all the people who hate the ACLU because the defend the "guilty" because of a technicality of law, remember this sort of case.

    Sometimes the question of an individual's guilt is secondary to the precedent which would be formed. It is absolutely the space between the rock and the hard place. Do you let a criminal go free or do you let an abuse of power go unchecked?

    More often than not, it is a "guilty" person who is on the receiving end of injustice such as invasion of privacy or violation of the 4th amendment. It is unfortunate that we don't have more clearly innocent people to protect. Generally speaking, police believe the "criminal" to be guilty. More often than not, they are, but this does not excuse a violation of constitutional rights to get a conviction.

    Our rights are in place to prevent the innocent from being falsely convicted by creating a system of checks and balances that is supposed to prevent abuse by police, prosecutors, etc. Inherent in the system is the acknowledgment that people are corrupt and corruptible but the hope that not all people are in the same pockets.

    My favorite example is O.J. Simpson. I am as confident that he killed his wife as I am that police planted evidence to get a conviction.

    • Generally speaking, police believe the "criminal" to be guilty. More often than not, they are, but this does not excuse a violation of constitutional rights to get a conviction.

      Our rights are in place to prevent the innocent from being falsely convicted by creating a system of checks and balances that is supposed to prevent abuse by police, prosecutors, etc.

      What you're talking about is the tension between the 'crime control' model and the 'due process' model.

      The names are fairly self explanatory, but here is what CliffsNotes has to say [cliffsnotes.com].

      Cliffs Notes claims Crime Control is a 'conservative' viewpoint and Due Process is a 'liberal' one, but keep in mind that historically speaking, Crime Control was pretty much the order of the day until very recently.

    • Re: (Score:2)

      by sjames ( 1099 )

      As a card carrying member of the ACLU, I regret this sort of case, but it is never the less the proper outcome. For all the people who hate the ACLU because the defend the "guilty" because of a technicality of law, remember this sort of case.

      The way I look at it, as long as my rights are respected, all I have to do to stay out of jail is obey the law. If they're not respected, who knows.

      Meanwhile, sometimes strict enforcement of rights lets a criminal go free. When that happens, they will either decide that was too close and stop breaking the law (problem solved) or they'll re-offend and get jailed.

      • The way I look at it, as long as my rights are respected, all I have to do to stay out of jail is obey the law.

        Let's hope you are not on the "terrorist watch list" by accident. Let's hope your house's address is not a transposition of some criminals. Lets hope you understand law well enough to know what is and what is not illegal.

        Are you a sexually active heterosexual male? Do you know in how many or which states that fellatio is illegal?

        • Re: (Score:2)

          by sjames ( 1099 )

          The way I look at it, as long as my rights are respected, all I have to do to stay out of jail is obey the law. Let's hope you are not on the "terrorist watch list" by accident. Let's hope your house's address is not a transposition of some criminals. Lets hope you understand law well enough to know what is and what is not illegal. Are you a sexually active heterosexual male? Do you know in how many or which states that fellatio is illegal?

          I didn't say my rights are respected here and now. Those rights include a right to a code of law that I can understand fully without an extraordinary effort. Part of that implies no laws against things that society as a whole doesn't see as wrong. Another part is no laws against consentual activities that don't harm others significantly. That also means law enforcement should make every effort to avoid errors and go through due process should an imposition (such as a search) be necesary. Once that is done

    • Comment removed based on user account deletion

  • What about federal interference. (Score:3, Interesting)

    by moxley ( 895517 ) on Tuesday April 22, 2008 @09:33AM (#23158134)
    This is great until the Feds come in and unconstitutionally trump that like they do whenever they wis to step all over state law.
  • The court decided that the ISP CAN, or perhaps I mean must, give out the information without a warrant. All that is needed is a subpoena.
    Orin Kerr discusses and links to the case at volokh.com, which isn't coming up for me right now.
    Also, most of the commenters seem to have missed that this is a case about the new jersey constitution, not about the 4th amendment.

    Above post is informative and insightful.

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