subject: Implied Right To Informational Privacy: Part II [print this page] Implied Right To Informational Privacy: Part II
The New Jersey courts have frequently held State constitutional protections against search and seizure to be more expansive than those ascribed by the federal courts to the Fourth Amendment, a practice not prohibited by federal law. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, 734 (1967), nor a mark of disrespect for our nation's highest court, State v. Hempele, 120 N.J. 182, 197, 576 A.2d 793 (1990). See, e.g. State v. Alston, 88 N.J. 211, (1981) (automatic standing); State v. McAllister, 366 N.J. Super. 251 (App. Div. 2004), aff'd in part, rev'd in part, 187 N.J. 17 (2005) (bank records); State v. Johnson, 68 N.J. 349, 353-54 (1975) (burden to prove knowing waiver as element of consent search imposed on State); State v. Hempele, 120 N.J. 182 (1990) (curbside garbage); State v. Carty, 170 N.J. 632 (2002) (reasonable and articulable suspicion of criminal activity is a prerequisite to police request to search a vehicle after a traffic stop), and cases collected at State v. Domicz, 377 N.J. Super. 515, 536-37 (App. Div. 2005), rev'd 188 N.J. 285 (2006).Having demonstrated its authority to act on the constitutional issue, the Reid court attempts to clear away the precedent in its path. In an internet pornography prosecution, State v. Evers, 175 N.J. 355, 815 A.2d 432 (2003) rejected a defendant's claim of privacy rights in his ISP records. Reid distinguished that case because the application for the New Jersey search warrant fundamentally relied upon material information obtained by subpoena from California police to AOL headquarters in Virginia, both outside the territorial jurisdiction of the New Jersey courts. State v. Domicz, 188 N.J. 285, 907 A.2d 395 (2006) canceled the Appellate Division ruling found at 377 N.J. Super. 515 (App. Div. 2005), which had suppressed the fruits of subpoenaed utility records for the defendant's residence. Many grounds were mentioned for reversal, which led Reid to conclude that it could treat the supreme court's unfavorable remarks concerning an expectation of privacy in such records as mere dicta, and ignore them without discussion. Having hacked its way through the brush ("[w]riting on a nearly clean slate") the Appellate Division briefly examines the origins and evolution of privacy rights in New Jersey law. A right to privacy under Art. I. par. 1 of the New Jersey constitution has long been acknowledged in a variety of different contexts. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 96 (1992) (declining to find a reasonable expectation of privacy in the result of employee drug testing, resulting in job termination). Doe v. Poritz, 142 N.J. 1, 89 (1995) (denying request to invalidate Megan's Law registration requirements as invasion of privacy rights, but requiring judicial approval prior to community notification) found that this privacy right extended to personal information. In resolving conflicts between the government's need for information and the individual's right of confidentiality, this Court has adopted a balancing test similar to that adopted by the federal courts. We concluded, in Martin, that "'even if the governmental purpose is legitimate and substantial . . . the invasion of the fundamental right of privacy must be minimized by utilizing the narrowest means which can be designed to achieve the public purpose.'" Reid concludes that the defendant's use of a coded screen name on an instrument of everyday commerce and communication, such as the telephone or internet, creates a reasonable expectation of privacy on her part, implicating the protections of Art I, par. 7. Whether or not the requirement of a warrant, or at least of notice to the defendant of third party records subpoenas to internet service providers, will so compromise grand jury secrecy as to unduly impede the State's legitimate investigatory powers is an issue that will certainly be addressed by our supreme court, if not in this case then in its progeny. One factor in that discussion will likely be the supreme court decision in State v. O'Hagen, ___ N.J. ___, 914 A.2d 267, decided the two days after Reid, upholding against privacy attacks the New Jersey DNA Database and Database Act, N.J.S.A. 53:1-20.17 - 20.28, which requires persons convicted of certain offenses to submit biological samples for inclusion in a DNA database which may be cross-referenced against DNA found at a crime scene.This article is for informational purposes only and does not constitute legal advice. For your specific situation, consult an attorney licensed in your jurisdiction.
