N.J. recognizes privacy in ISP information, but not from a grand jury subpoena

Defendant allegedly used her home computer to access an Internet website belonging to a supplier for her employer’s business. While on the supplier’s website, she allegedly changed her employer’s password and shipping address to a non-existent address. The supplier reported the changes to the business owner. A computer specialist captured the user’s IP address, and a subpoena duces tecum issued by a municipal court was served on the user’s ISP, which released personal information pertaining to the IP address. Under N.J. Const. art. I, ¶ 7, the court held that citizens had a reasonable expectation of privacy in the subscriber information they provided to ISPs. Accordingly, the motion to suppress by defendant was properly granted because the police used a deficient municipal subpoena. Law enforcement officials could obtain subscriber information by serving a grand jury subpoena on an ISP without notice to the subscriber. The indictment could thus be dismissed, a grand jury subpoena served, and the case start over again. State v. Reid, 194 N.J. 386, 945 A.2d 26 (2008).

Private shipping facility was enlisted by the police to help track packages that the police suspected contained drugs. This did not make the employee a government agent. Hitchcock v. State, 291 Ga. App. 455, 662 S.E.2d 155 (2008):

Hitchcock argues that the UPS employee was acting on behalf of governmental authorities since his initial suspicions as to this addressee of UPS packages arose when law enforcement officials had asked for his assistance in an earlier investigation that involved a shipper who (the UPS employee later determined) was sending numerous packages to Hitchcock at his rented mailbox. This argument fails.

“The test is whether the private individual, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the government when he produced the evidence.” (Punctuation omitted.) Marks v. State. The trial court should focus on whether the package at issue was “opened through the intervention or direction of law enforcement officers,” or whether instead “law enforcement agencies became involved only after the corporate employee[] discovered the contraband and called” police. Hyatt, supra, 210 Ga. App. at 425 (1). Where the private employee engages in a search “on his own volition, clearly outside of the behest of any governmental agent[, his actions are] based solely on his own suspicions” and are outside the reach of the Fourth Amendment. Morton, supra, 181 Ga. App. at 783-784(2). “The additional invasion of the privacy of the defendant’s package by the government agent is permissible as long as it does not exceed the scope of the private search. …” Marks, supra, 174 Ga. App. at 715 (1).