New Jersey, recognizing that all cases are to the contrary, finds that, since its state constitution provides greater rights for individuals, there is an expectation of privacy in an internet service provider’s records of screen name owners. State v. Reid, 2007 N.J. Super. LEXIS 11 (January 22, 2007):
Writing on a nearly clean slate, we conclude that defendant had a reasonable expectation of privacy in her ISP account information obtained by Detective Smith from Comcast by means of the invalid subpoena. We do so treading the State constitutional path illuminated by the Court in cases such as McAllister, Hunt and Hempele, decisions which are highly protective of an individual’s right to privacy even when the information sought is, of necessity, in the hands of a third-party. As the Court said in Doe, supra, 142 N.J. at 89-90, 662 A.2d 367, “[w]e have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information” (citations omitted).
By her use of an anonymous ISP address, 68.32.145.220, or “screen name,” defendant manifested an intention to keep her identity publicly anonymous. She could have used her own name or some other ISP address that would have readily revealed her identity, but she did not. Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast. Defendant’s interest in anonymity is both legitimate and substantial, see Doe, supra, 142 N.J. at 87, 662 A.2d 367, and the data on file with Comcast fell within the concept of informational privacy, which we have earlier endorsed.
Comment: Because this case stands alone for this proposition, I do not quote at greater length. The case name is a free link to the opinion which is replete with references to New Jersey having determined that it has a greater right of privacy than that recognized under federal law since a 1907 case, and it develops from there. This is not new for New Jersey because they have rejected several Supreme Court cases that limit the expectation of privacy.
In a federal prosecution for DWI of a civilian under the Assimilative Crimes Act, where Congress has not spoken, under Maryland statutory and common law a military police officer has no authority to pursue a civilian suspect off federal property to make an arrest, even in fresh pursuit. State law had to be applied, too. United States v. Atwell, 470 F. Supp. 2d 554 (D. Md. 2007):
The same restrictions apply to military police officers. See Major Matthew Gilligan, Opening the Gate?: An Analysis of Military Law Enforcement Authority Over Civilian Lawbreakers On and Off the Federal Installation, 161 Mil. L. Rev. 1, 31 (1999). Indeed, the restrictions might even be greater for military law enforcement officers, as military police officers have never been granted broad statutory authority to arrest civilians. Id; Administrative & Civil Law Dep’t, The Judge Advocate General’s School, U.S. Army, JA-221 Law of Military Installations Deskbook at 2-305 (Sept. 1996) (“Congress has not granted any statutory authority to arrest civilian lawbreakers.”). “A firmly rooted principle of American government is that the federal armed forces shall be subordinate to civil authorities.” Gilligan, 161 Mil. L. Rev. at 31. Accord 9 Op. Att’y Gen. 516, 522 (1860)(“[M]ilitary power must be kept in strict subordination to the civil authority, since it is only in the aid of the latter that the former can act at all.”). As a result, while on military property military officers have the same authority that civilian law enforcement officers have, i.e., to maintain order, security, and discipline on a military reservation, see Kennedy v. United States, 585 F.Supp. 1119, 1123 (D.S.C. 1984), such general authority has not been granted for areas where the United States Army does not have exclusive or concurrent jurisdiction.
Officers had probable cause to arrest plaintiff for DWI based on admissions to EMTs which they related to the officers. Therefore, the taking of her blood after an accident under N.Y.’s implied consent law was reasonable, and summary judgment granted. D’Angelo-Fenton v. Town of Carmel, 2007 U.S. Dist. LEXIS 4071 (S.D. N.Y. January 17, 2007).*
