N.J. high court requires subpoena for Internet records

Internet service providers cannot release information about users, even to police, without a valid subpoena, the New Jersey Supreme Court unanimously ruled Monday.

Grayson Barber, an attorney who wrote an amicus brief on behalf of advocacy groups, such as the Electronic Frontier Foundation and American Civil Liberties Union, said this case helps draw a finer distinction of the power police should have in obtaining private information – whether it’s on the Internet or otherwise.

“The bigger picture is that the limitations on police power that apply in real space also apply in cyberspace,” Barber said.

The high court upheld the lower court decisions that ruled police issued a faulty subpoena in seeking private information about a woman who was accused of second-degree computer theft after allegedly changing her employer’s codes to a supplier’s Web site.

Barber said this is one of the first courts in the country, if not the first, to recognize that people have a reasonable expectation of privacy when they’re using the Internet anonymously.

“It’s a nice answer to the argument the attorney general was making,” Barber said, “that when you’re in cyberspace, anything goes. Police shouldn’t be able to conduct surveillance merely because they can.”

The court ruled that the police didn’t follow proper procedure when it filed a subpoena with a municipal court, and it must seek a criminal grand jury subpoena to get such information because an indictable offense was at hand.

The court also ruled that the state Constitution gives greater protection against unreasonable searches and seizures than the U.S. Constitution.

The high court has, however, left the door open for the police to re-seek the private information.

“The records of the protected subscriber information existed independently of the faulty process the police used, and the conduct of the police did not affect that information,” wrote Chief Justice Stuart Rabner. “As a result, the state may seek to reacquire the subscriber information with a proper grand jury subpoena.”

Grayson said this invalidates the court’s overall ruling ensuring police power is used properly.

“They gave the police a chance to do it again,” she said. “And that raises the question of what’s going to deter police misconduct. If the police can just go back and do over then you’re not going to get any real deterrent.”