Expectation of Privacy in E-mail Names in NJ – State v. Reid

Assuming there will be no appeal, this morning’s Appellate Division decision in State v. Reid will be regarded as a landmark decision. In Reid, the police obtained information related to a suspect’s on-line screen name by simply serving a subpoena duces tecum issued out of municipal court upon the internet service provider (ISP) provider, Comcast. At the time the subpoena issued, there was no pending municipal court case, nor was the court in session during the return date and time specified on the subpoena. Comcast complied with the subpoena and provided the information to the police which ultimately lead to the arrest of the defendant.

The Appellate Division rejected the investigative procedure utilized by the police in this case. The use of a subpoena duces tecum issued by a court that had no jurisdiction over the offense under investigation and was not in session on the return date of the subpoena was entirely improper.

Beyond this, however, the Court also ruled that people in New Jersey have an expectation of privacy in their internet screen names under the New Jersey Constitution. In so holding, the Court distinguished an earlier Supreme Court case, State v. Evers, 175 N.J. 355 (2003) which seemed to imply that there was no such expectation of privacy. This ruling adds to the pantheon of cases where people in New Jersey receive more protection under Article I, paragraph 7 of the State Constitution of 1947 than they would otherwise receive under the IVth Amendment to the United States Constitution. As a result of this case, it appears that police who require information related to a screen name from an ISP will have to obtain either a search warrant, a grand jury subpoena or an order to produce from the Superior Court based upon a showing of probable cause.

Download a copy of State v. Reid.

Category: Muni-Mail Archive