NH: Declining to follow NJ case, there is no REP in IP subscriber information

A New Hampshire judge issued a search warrant for Comcast subscriber information which was located in New Jersey. While the judge lacked authority to issue a search warrant for evidence in New Jersey, there were other ways for judicial process to gather the evidence, such as the Uniform Act for Attendance of Witnesses from Without State. However, defendant’s subjective expectation of privacy in his IP subscriber information was not one that society was prepared to find was reasonable. The court declines to follow a New Jersey case based on its different state constitution. State v. Mello, 162 N.H. 115, 27 A.2d 771 (2011):

Likewise, we see no meaningful distinction between obtaining telephone numbers recorded in the ordinary course of business by a telephone company and the procurement of a customer’s basic subscriber information from an Internet service provider. As in Valenzuela and Gubitosi, the defendant voluntarily provided the information to Comcast, which recorded it in the ordinary course of business for billing purposes and used it to provide the defendant with Internet service. Having voluntarily provided this information in order to use Comcast’s service, the defendant cannot now claim a privacy interest in it. See Valenzuela, 130 N.H. at 188 (explaining that once a defendant voluntarily discloses information to another he cannot claim a degree of privacy protection against the government because it would result in “a kind of evidentiary copyright”). Accordingly, we join the overwhelming majority of federal and state courts that have addressed this issue and conclude that a defendant has no reasonable expectation of privacy in subscriber information voluntarily provided to an Internet service provider. [citations omitted]

Our conclusion is bolstered by Comcast’s customer privacy policy, which specifically reserves the right to disclose subscriber information to “comply with law.” The defendant contends that this exception to the privacy policy is inapplicable because Comcast responded to a defective warrant. We are unpersuaded by this distinction because Comcast undoubtedly believed that it was disclosing the defendant’s information in order to “comply with law.”

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The defendant also points us to the New Jersey Supreme Court’s decision in State v. Reid, 194 N.J. 386, 945 A.2d 26 (N.J. 2008), which, contrary to the majority of jurisdictions, recognized a reasonable expectation of privacy in Internet subscriber information. Reid, 945 A.2d at 33-34. The court in Reid began its analysis by recognizing that federal courts, relying upon “settled federal law that a person has no reasonable expectation of privacy in information exposed to third parties, like a telephone company or bank,” have found no expectation of privacy in Internet subscriber information. Id. at 31. Nonetheless, the court reached a different conclusion based upon its own case law, which recognizes a reasonable expectation of privacy in telephone billing and bank records. Id. at 32.

Despite our previous reliance upon “settled federal law” recognizing no reasonable expectation of privacy in information voluntarily exposed to third parties, the defendant urges us to adopt the reasoning of Reid. He contends that our State Constitution, like New Jersey’s State Constitution, provides greater privacy protection than the Federal Constitution. …