[Infowarrior] - N.J. Internet users' aliases are private, court says

[Richard Forno]

N.J. Internet users' aliases are private, court says
A woman had a "legitimate and substantial" interest in anonymity, it ruled.
By Jeffrey Gold
Associated Press
http://www.philly.com/mld/inquirer/news/local/states/new_jersey/16523187.htm

NEWARK - 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.

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

"Yes, this indicates that New Jersey, like a lot of states, is ahead of the
curve on Internet privacy," said Kevin Bankston, a staff attorney with the
Electronic Frontier Foundation, a San Francisco-based digital rights group.

Bankston also praised the decision for recognizing anonymity as a core
free-speech right.

The 3-0 ruling by an appellate panel 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.

It was not immediately known if the ruling would lead to the dismissal of
the one-count indictment on a charge of computer theft. Messages left for
Reid's lawyer and the Cape May County Prosecutor's Office were not
immediately returned.

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.