Differing Notions of Privacy in an Internet Age
A pair of decisions issued yesterday highlight the courts' different approaches to privacy in an Internet Age. In New Jersey, the state's highest court ruled that law enforcement officials need a grand jury warrant in order to access identifying information about anonymous users from Internet service providers. In so doing, the court recognized that "citizens have a reasonable expectation of privacy protected by Article I ... of the New Jersey Constitution, in the subscriber information they provide to Internet service providers -- just as New Jersey citizens have a privacy interest in their bank records stored by banks and telephone billing records kept by phone companies."
By contrast, the Ninth Circuit ruled that border control agents could lawfully search a traveler's laptop without reasonable suspicion, holding that the appellant failed to show that a laptop and its electronic contents are "logically" different from the contents of luggage, where suspicionless searches are permissible. As Scott Greenfield points out, the Ninth Circuit reversed the lower court's decision by Judge Dean Pregerson who concluded that individuals have a privacy interest in computers, which are more like diaries holding personal secrets than a suitcase that merely holds objects. Greenfield blasts the Ninth Circuit for being out of touch with technology by failing to realize the function of computers in today's high tech world.
So what accounts for the differences in these courts' approaches? Are federal judges simply more out of touch with technology than New Jersey -- or does the federal Constitution constrain them from more progressive rulings? Lee Tien, an attorney for the the Electronic Frontier Foundation, told the Star Ledger that "the federal Fourth Amendment is inadequate for modern privacy issues." Perhaps then, advocates need to look to state constitutions to vindicate individual privacy interests.
Posted by Carolyn Elefant on April 22, 2008 at 04:49 PM | Permalink
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