Computer users beware. The Supreme Court of New Jersey is reviewing State v. Reid, A-3424-05T5 (N.J. App. Div., Jan. 22, 2007), which means that the high court will consider the extent of privacy afforded to those in New Jersey who seek to conceal their identities through anonymous computer screen names.

New Jersey traditionally affords greater constitutional protections than required under federal law. For example, the United States Supreme Court ruled that there is no expectation of privacy under the Fourth Amendment in bank records, but New Jersey has held that there is an expectation of privacy in bank records under the State Constitution and requires a search warrant before authorities can search those records. The same is true with phone records and utility records. In New Jersey, your home is protected from thermal-imaging scans without a warrant. Where else but New Jersey is a warrant required before authorities can rummage through your trash can? The Supreme Court of New Jersey must now decide whether one’s expectation of privacy is broad enough to cover computer screen names.

In State v. Reid, A-3424-05T5 (N.J. App. Div., Jan. 22, 2007), New Jersey’s intermediate appellate court (the Appellate Division) granted an interlocutory appeal so that it could consider an order granting defendant’s motion to suppress evidence seized by local authorities. The evidence, which consisted of information on file with defendant’s internet service provider about defendant’s computer user name, was obtained in response to a “subpoena” issued by a Municipal Court. The significance of the evidence is that it revealed the identity of the person who owned the user name employed to hack into a computer. The owner was the defendant, and she was thereafter arrested and charged with computer related theft. The trial court suppressed evidence received from the internet service provider because, the court held, it was obtained without a warrant and warrants are required when the government invades an area in which one has a reasonable expectation of privacy – here, an anonymous computer user name. The Appellate Division granted the State’s motion for interlocutory review.

The Appellate Division addressed two issues. The first issue was that issuance of the “subpoena” (not a search warrant) upon the internet service provider violated protocol for issuance of subpoenas. The court issuing the subpoena lacked jurisdiction. Second, and more importantly, the court addressed the issue of whether computer users have an expectation of privacy in their computer user names that shields the information from unwarranted government intrusion. The court lamented, “[t]he precise question we confront has been uniformly answered in the negative by the federal courts, all of which have held that internet subscribers have no right of privacy under the Fourth Amendment with respect to identifying information on file with their internet service providers.” This reasoning flows from the fact that there can be no expectation of privacy in personal information voluntarily provided to third persons, such as your local telephone company.

Some states have an explicit right to privacy written into their State Constitution that affords their residents greater protections than afforded in the Fourth Amendment of the United States Constitution. New Jersey lacks such a provision, but enforces an implied right to privacy that results in additional protections being afforded on a case by case basis. Here, “[b]y her use of an anonymous ISP address . . ., or ‘screen name,’ defendant manifested an intention to keep her identity publicly anonymous . . . . Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast [(her internet service provider)].” Defendant’s interest in anonymity was “both legitimate and substantial” and, “[w]hile not sacrosanct”, this information is entitled to constitutional protections akin to those afforded in New Jersey to bank records, phone records, and utility records. The State’s failure to obtain a valid search warrant infringed upon defendant’s reasonable expectation of privacy, thereby compelling the court to affirm the order suppressing the evidence.

In State v. Reid, Docket Number 60,756, the Supreme Court of New Jersey granted the State’s motion for final appellate review, which means that the Court will decide whether to affirm, reverse or modify the Appellate Division’s ruling. Until the Supreme Court of New Jersey acts, computer users in New Jersey enjoy a right to privacy in the computer user names.