Intellectual Property Law

A state constitutional right to privacy

By Susan Crawford

This story by Tom Hester of the New Jersey Star Ledger is fascinating.

Federal Fourth Amendment protection of non-content information online doesn’t exist in the U.S. — the idea is that because you’ve given that information to your ISP (a third party) in order to “complete the call” (in telephone terms), you don’t have any reasonable expectation of privacy in it.  The Stored Communications Act allows ISPs serving the public to give that non-content information voluntarily to any private person, and it doesn’t take much process for the government to compel its disclosure.

But the New Jersey Supreme Court, reading the New Jersey constitution, thinks that’s not enough protection.  Here’s a nice quote from Lee Tien of EFF:

“Obviously, the federal law is terribly weak in this area because of bad decisions in recent years,” Tien said. “The federal Fourth Amendment is inadequate for modern privacy issues. New Jersey interprets its constitution to be along the line that ordinary people have a fundamental expectation of privacy.”

This decision isn’t saying that law enforcement can’t obtain subscriber information.  But subscribers in New Jersey, under New Jersey’s constitution, have a reasonable expectation that their identity information won’t be disclosed absent some substantial process - here, a subpoena issued by a grand jury.  It’s a decision in a grand tradition of states reading their constitutions to provide guarantees greater than those available under the federal constitution.

A constitutional right of privacy - something we haven’t seen in a while.

Full post as published by Susan Crawford Blog on April 22, 2008 (boomark / email).