New Jersey Caselaw: Through State v. Reid, 194 N.J. 386 (2008), the New Jersey Supreme Court recently issued a landmark holding that Internet subscriber information is protected from disclosure because it is considered confidential. The confidentiality can be overcome by a demonstration of relevancy, however, the person who is the subject of the request must be given a reasonable opportunity to contest the turn over at a judicial hearing.

In Reid, the State prosecuted a case where a company alleged that a former employee was stealing its proprietary information using a confidential Internet password. The underlying act was traced to a Comcast IP address. IP addresses are generally anonymous, and the identity of the person or persons who act through a particular IP address is not generally evident. Comcast refused to provide the user information relating to that IP address when initially requested. However, when a subpoena was issued to it, Comcast revealed the defendant’s Internet subscriber information. Notably, Comcast’s response to the subpoena was without notice to the defendant and without a judicial hearing. The defendant then sought to suppress this information as evidence on the basis that Comcast had revealed the user information in a manner that violated her constitutional right to privacy.

The New Jersey Supreme Court determined that while it might not have violated her privacy right under the United States Constitution, the New Jersey Constitution provides enhanced privacy rights that were violated. Specifically, Article I, Paragraph 7 states that people who live in New Jersey have a right of privacy; while the federal constitution does not explicitly guaranty such a privacy right. In fact, the United States Supreme Court has held that the Fourth Amendment to the Federal Constitution is not violated by a subpoena seeking such information.

However, since New Jersey’s Constitution provides this an enhanced right to privacy, its State and Municipal Courts are required to provide notice to the subject of the subpoena and an opportunity to contest the production. In such a hearing, the relevancy of the material sought is the key to determining whether production is warranted. Importantly, this protection extends to more than just Internet service provider records, but also long-distance phone billing records and bank records, as well. In reaching this holding, the Court noted the sensitive and personal information that can be communicated through these methods of communication that are now ingrained into our daily lives.

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