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New Jersey Constitution Requires Subpoena for Subscriber Information from ISP:
The New Jersey Supreme Court has long interpreted the state constitution as going beyond the federal Constitution, and today the Court held that the New Jersey Constitution's version of the Fourth Amendment protects basic subscriber information (name, address, etc.) from an Internet Service Provider. The case is State v. Reid, and it involves an effort to compel Comcast to disclose what subscriber was assigned a particular IP address that was the source of an alleged computer intrusion.

  I have two reactions. First, this decision doesn't matter much. After concluding that basic subscriber information is protected by the state constitution, the Court then concludes that a mere relevance subpoena is sufficient to respect the privacy interest. So no warrant is required, and no probable cause is required. That's where the real action is in this area, so the stakes of the Reid case end up being very low. Second, in a forthcoming article in the Michigan Law Review, I explain why I think reasoning such as the New Jersey Court's is conceptually flawed: In a nutshell, it misses the fact that addressing information in the online context is the virtual equivalent of public information such as physical location in the traditional physical setting. But the New Jersey Court's conclusion that a mere subpoena is enough makes this objection quite minor.

  UPDATE: I rewrote the post after realizing I had initially misread the Court's decision.
CWuestefeld (mail) (www):
I know the idea of "judicial activism" is derided here as ill-defined, but if ever the term were applicable, it would be to the New Jersey Supreme Court.

As far as I can see, their methodology is to decide the outcome they prefer, and then try to come up with some fig leaf of a rationale to put behind it.

Examples:
Abbott v Burke

The Torricelli/Lautenberg Switcheroo
4.21.2008 4:29pm
John McCall (mail):
I presume the argument you're making is that the identity of the user of a known IP address (at a particular moment) ought to be public information just as the identity of the owner of a known house is public information. That argument isn't fully justified by the analogy, so I look forward to seeing your article.

In particular, it seems to me that the address-to-owner relation is anomalous in being public. I don't believe you can freely discover the owner of, say, a phone number or (possibly) a car; there are privacy rights in these relations. Even the address-to-owner relation is only public in one direction: I have a right to conceal the place(s) I live. And I think this is right: there are important public benefits in being able to freely discover the owner of some land that simply don't arise in other contexts. If I want to know who has the phone number 867-5309, I should have to have some compelling reason, and that's basically what a subpoena requirement is. I think the phone-number analogy is much more compelling than the physical-address analogy.
4.21.2008 4:57pm
Soronel Haetir (mail):
The whole school funding history would appear to be the very definition of rule by judges.
4.21.2008 5:02pm
Lior:
I fully agree with John. Just because I call others on the phone and talk to them does not mean I give up my privacy interest in my home address. Surely a subpeona is required for the phone company to disclose my (real-life) address based on the "call display" phone number they have.

It is true that "addressing" headers in the online context are the analogues of ordinary addresses, but I think OK fails to carry his analogy all the way. What it should mean is that you have no privacy interest in the addresssing information itself -- the IP address you use, the IP addresss of the computer you contacted, the e-mail address of the addressee of an e-mail you sent, the address of the website you visited (if I send an envelope through the post I can't claim the address I wrote on it is private).

Prof. Kerr, the fact that there is a house at "100 Hamilton Ave." is public information; the owner of the property is listed at a public register. But that doesn't mean that the landlord can be forced to reveal who rents the place from him without some kind of court order. IP addresses are rather similar: that the address falls in Comcast's address block is public information. But who rented the address from Comcast is private.
4.21.2008 5:16pm
Cornellian (mail):
Nothing in the Supremacy Clause leads inexorably to the conclusion that the federal government is immune to state constitutional provisions.
4.21.2008 5:19pm
Eugene Volokh (www):
Cornellian: I'm not sure I quite understand your point -- can you elaborate, please?
4.21.2008 5:37pm
Cornellian (mail):
The original post (which now seems to be changed) said that this decision wouldn't affect the feds, because the Supremacy Clause makes the federal government immune to state constitutional restraints.

I was just making the point that the Supremacy Clause doesn't actually say that. It says the constitution and (valid) federal laws are the supreme law of the land. Hence, for the feds to be immune to state constitutional provisions, there must be a "law" that says so. You can (arguably) get that law inferentially from the constitution though it doesn't say so explicitly (dare I use the word "penumbra"?). Alternatively, if the feds enacted a statute saying "we're immune to all state constitutional restraints" then, assuming that law was validly enacted, the supremacy clause would then kick in for that law and the feds would be immune to state constitutional restraints.

In sum, my point was just that the supremacy clause standing alone doesn't lead automatically to the conclusion that the feds are immune to state constitutional restraints - there are some inferences one has to draw over and above the text of the supremacy clause to get to that conclusion.
4.21.2008 6:29pm
OrinKerr:
I presume the argument you're making is that the identity of the user of a known IP address (at a particular moment) ought to be public information just as the identity of the owner of a known house is public information. That argument isn't fully justified by the analogy, so I look forward to seeing your article.

I hate to disappoint, but I make no such argument.

It is true that "addressing" headers in the online context are the analogues of ordinary addresses, but I think OK fails to carry his analogy all the way.

I always marvel at the ability of VC readers to criticize me for an argument I haven't made.
4.21.2008 6:34pm
GV:
I know this is dumb, but I don't think you're "supposed" to call a state's high court "Court."
4.21.2008 8:02pm
OrinKerr:
GV,

Why not?
4.21.2008 9:08pm
John McCall (mail):
Er, alright. Your post claims that "addressing information in the online context is the virtual equivalent of public information such as physical location in the traditional physical setting" and hence the New Jersey constitution doesn't provide privacy protections against the discovery of subscriber identity by IP address. Now, that's not a transparent inference, so I tried and apparently failed to reconstruct your argument; should I simply wait for your article, then?

I also argued that your analogy is inappropriate because the analogized case is anomalous; whether that answers your actual argument remains to be seen.
4.21.2008 10:33pm
GV:
Because the bluebook does not condone referring to state supreme courts as "the Court." I think a lot of people know this (perhaps not?), so referring to the New Jersey Supreme Court as "the Court" might cause a brief reading miscue.
4.21.2008 10:50pm
David Schwartz (mail):
addressing information in the online context is the virtual equivalent of public information such as physical location in the traditional physical setting
If this were true, it would argue for the need for subpeonas. Just because a guest in my house calls you on the phone, you don't get to compel me to tell you which phone in my house he used.
4.21.2008 10:57pm
ratel (mail):
It has been some time since I reviewed the relevant material, but I believe that the application of State Law standards to the actions of Federal Agents depends on if the Federal Agent is essentially acting as a proxy for the state agent. Thus, if an individual state has decided that the warrant requirement applies to vehicle searches than the state police cannot have the DEA or FBI show up and search a vehicle for them, then try to use the evidence found by the Federal Agents in State court. However, if the Feds find evidence during their own independent investigation they can turn it over to the state agents.

I could be way off base, so please correct me if I am wrong.
4.21.2008 11:04pm
OrinKerr:
GV,

Got it. The VC doesn't follow the Blue Book, as far as I know.
4.21.2008 11:13pm
GV:
Not what I would expect, given that this is a libertarian blog.
4.21.2008 11:17pm
OrinKerr:
GV,

Nice. Of course, here at the VC someone would have to point out that most of the authors of the Blue Book are statists, and we here don't like it when statists try to impose arbitrary rules on us. (Also, I had thought the rule was that any highest court is capped, but you're right -- it's only the SCT and references to the full title of a court or in court docs.)
4.21.2008 11:28pm