Intellectual Property Law

N.J. Constitution Requires Subpoena for ISP Data

By Tim Armstrong, Derek Bambauer, and William McGeveran.

The New Jersey Supreme Court issued a unanimous decision on Monday ruling that the state’s constitution goes further than the United States Constitution by requiring a warrant before the government can obtain subscriber information from an information service provider (such as linking a name to an IP address). Under controlling Fourth Amendment precedent, individuals have no expectation of privacy in subscriber data held by their ISP. This decision continues the Garden State’s tradition of rejecting a “third party doctrine” under its state constitution. Under that widespread doctrine, applicable in federal court and most states, financial records that are held by your bank or logs of the telephone numbers you’ve dialed that are held by the phone company are unprotected — because they are held by third parties, no longer in your sole control. New Jersey had previously rejected the doctrine in the context of bank and telephone records. While many states track federal constitutional law in this area, there is a bewildering array of caveats and exceptions.

According to the Newark Star-Ledger, this is the first time a state Supreme Court has ruled that ISP records are private. Nevada and Minnesota both have statutes to that effect, however. And, as Ars Technica warns, changing technology may undermine the logic of the New Jersey ruling:

The justices say that IP addresses are sufficiently anonymous to justify privacy protection because, theoretically, only the Internet service provider can identify who is associated with a specific IP address. … [T]hat could change if the technology ever evolves in a manner that makes it easy for individuals to identify who is associated with an IP address.

Moreover, the effect is limited in two significant respects: it will not apply in federal court, and it isn’t difficult for the police to meet the requirements to get a warrant. That may be the right balance, however: enough judicial supervision to constitute a speed bump and prevent irresponsible dragnet investigations, but not so much that it really impedes criminal investigations.

Full post as published by Info/Law on April 23, 2008 (boomark / email).