II. Privacy Expectation For ISP Subscribers
Rejecting the State’s comparison of IP addresses to the unprotected return addresses on envelopes, the court ruled that there is a reasonable expectation of privacy for ISP subscribers regarding their personal information. The difference, the court reasoned, is that return addresses are not required to mail a letter, yet IP addresses are required to go online. Disclosure to third-parties, when required to obtain service, does not waive the expectation that the disclosed information not be shared with other individuals or entities.
In its argument that no expectation of privacy exists for ISP subscribers, the State cited State v. Evers as precedent. In Evers, a deputy sheriff in California obtained a search warrant against AOL’s corporate headquarters in Virginia to learn the identities of individuals who had emailed him after his undercover infiltration of a pedophilia-themed chat room. The court upheld the validity of the search warrant against the privacy claims of a New Jersey man who had emailed the deputy a pornographic image.
The New Jersey Supreme Court rejected the State’s use of Evers as justification for the subpoena issued in the present cases. Distinguishing Evers, the court noted that federal, rather than New Jersey laws, were applied in that case because the warrant was issued by a California police department for the records of a Virginia-based business, with no involvement by New Jersey authorities. Therefore, Evers has no bearing on privacy law in the state of New Jersey.
The court also highlighted the notion that the reasonableness of the expectation of privacy in this case is dependent upon the evolution of technology. Currently, there is no way for an individual to obtain another’s ISP subscriber information without contacting the ISP itself, so it is reasonable for one to expect that information to remain private. Though there are websites like Whois that provide IP address locater services, they usually provide only the name and location of the ISP rather than of an individual, because most people obtain their IP address through an ISP. Yet, the court imagined that if a program allowing individuals to identify each other without having to contact ISP providers became widely available, then it would likely no longer be reasonable to expect anonymity in one’s online activities.
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