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A US court has ruled that users have a "reasonable expectation of privacy" in their internet surfing records and that police must obtain warrants from higher than usual courts in order to force ISPs to hand over records.

The Supreme Court of the state of New Jersey said that information about a person's use of the internet was so private that police there cannot order ISPs to release surfing details of suspects with a municipal court subpoena. They must receive a grand jury subpoena, it said.

"The court holds that citizens have a reasonable expectation of privacy in the subscriber information they provide to internet service providers," said the court's ruling. "Law enforcement officials can obtain subscriber information by serving a grand jury subpoena on an Internet service provider without notice to the subscriber."

Chief Justice Rabner said: "Individuals need an ISP address in order to access the internet. However, when users surf the web from the privacy of their homes, they have reason to expect that their actions are confidential. Many are unaware that a numerical IP address can be captured by the websites they visit. More sophisticated users understand that that unique string of numbers, standing alone, reveals little if anything to the outside world. Only an internet service provider can translate an IP address into a user’s name."

The case involved Shirley Reid, who was accused of hacking into her employer's computer system.

After Reid's ISP, Comcast, handed over details of her account, including the IP address from which she accessed the internet, she was found guilty of computer theft in connection with the hacking incident.

Reid overturned that decision on appeal and at the Supreme Court of New Jersey stage, arguing that the evidence should be suppressed.

Reid's lawyers had argued that a person should be informed when a subpoena is issued permitting the release of their telecommunications subscription details so that they can oppose the move. The Supreme Court of New Jersey, though, said that as long as the subpoena is from a grand jury the information can be released without the knowledge or consent of the user.

"Modern technology has raised a number of questions that are intertwined in this case: to what extent can private individuals 'surf' the 'web' anonymously? Do internet subscribers have a reasonable expectation of privacy in their identity while accessing internet websites? And under what circumstances may the State learn the actual identity of internet users?" said Chief Justice Rabner in his ruling.

"We decline to adopt a requirement that notice be provided to account holders whose information is subpoenaed," he said. "For obvious reasons, notice could impede and possibly defeat the grand jury’s investigation. Particularly in the case of computers, unscrupulous individuals aware of a subpoena could delete or damage files on their home computer and thereby effectively shield them from a legitimate investigation."

The court said that although Reid was successful in having the municipal warrant-obtained evidence suppressed, the police were not barred from approaching Comcast again and obtaining the records using an appropriate warrant.

See: The ruling (32 page/72KB pdf)

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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