New Jersey and the Right to Privacy

By Kristopher A. Nelson in

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[T]he right to privacy of New Jersey citizens under our State Constitution has been expanded to areas not afforded such protection under the Fourth Amendment. . . . [O]nly New Jersey appears to have recognized a right to what has been called “informational privacy.” In general, “informational privacy encompasses any information that is identifiable to an individual. This includes both assigned information, such as a name, address, or social security number, and generated information, such as financial or credit card records, medical records, and phone logs. . . . [P]ersonal information will be defined as any information, no matter how trivial, that can be traced or linked to an identifiable individual.

The New Jersey Supreme Court rejected reasoning of Smith v. Maryland in State v. Hunt, 91 N.J. 338 (1982). Also rejected reasoning United States v. Miller and United States v. Payner in State v. McAllister, 184 N.J. 17 (2005) to find person has a reasonable expectation of privacy for bank records. (Note that a valid grand jury subpoena duces tecum is sufficient, and the court notes that even an “administrative subpoena” might be OK.)

The appeals court concludes that a the woman in this case “had a reasonable expectation of privacy in her ISP account” with AOL, partly due to her use of a screen name instead of her real name (and in slightly technically suspect reasoning–the law is OK, the tech is a little shaky–the use of an IP address, which the court seems to think she intentionally chose for the sake of anonymity). The court analogizes the personal computer use to telephone use.

Ultimately, the court says “proper judicial process” is required, although I’m a little unclear if something less than probable cause might be OK in some circumstances for some kinds of info–but certainly the court encourages a probable cause standard, and finds the subpoena in this case (issued by a court administrator in the Municipal Court) invalid and insufficient.

From State of New Jersey v. Reid, decided January 22, 2007 by the appellate court in New Jersey.