The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Tuesday, April 22, 2008
Some interesting news from the courts of New Jersey. The New Jersey Supreme Court has ruled that law enforcement need warrant or subpoena to get information about internet users. This goes against jurisprudence from the US Supreme Court, but may be the beginning of a trend (fingers crossed). The court based the decision on a user's expectation of privacy, which is probably a realistic statement of internet users' expectations.
N.J. justices call e-privacy surfers' right- NJ.com
... The unanimous seven-member court held that police do have the right to seek a user's private information when investigating a crime involving a computer, but must follow legal procedures. The court said authorities do not have to warn a suspect that they have a grand jury subpoena to obtain the information.
Writing for the court, Chief Justice Stuart Rabner said: "We now hold 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."
Barber said most people use the internet like a phone, making personal -- sometimes sensitive -- transactions that they don't believe the police will be able to access.
"This decision reflects the reality of how ordinary people normally use the internet," he said. "'It's very nice to have the court recognize that expectation is reasonable."
The court ruled in the case of Shirley Reid of Lower Township, Cape May County, who was charged with second-degree computer theft for hacking into her employer's computer system from her home computer. Township police obtained her identity from Comcast by using a municipal court subpoena. The Supreme Court held that law enforcement had the right to investigate her but should have used a grand jury subpoena.
A state Superior Court in Cape May Court House suppressed the evidence based on the use of the wrong subpoena, and a state appeals court upheld the action when the Cape May County Prosecutor's Office appealed.
Reid was investigated after her employer, Jersey Diesel of Lower Township, was notified by a business supplier in 2004 that someone had accessed and changed both the multi-digit numbers that make up the company's IP address and password and had created a non-existent shipping address. When the owner, Timothy Wilson, asked Comcast for the IP address of the person who made the changes, the internet provider declined to comply without a subpoena.
Wilson suspected that Reid, an employee who had been on disability leave, could have made the changes. On the day the changes were made, Reid had returned to work, argued with Wilson and left.
When the police obtained a municipal court subpoena and served it on Comcast, the internet provider identified Reid, her address and telephone number, type of service provided, e-mail address, IP numbers, account number and method of payment. In 2005, a Cape May grand jury returned an indictment charging Reid with computer theft.
Lee Tien, an attorney for the Electronic Frontier Foundation, said the decision is an important ruling on the state constitution. ...
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