Tuesday, April 22, 2008

Good News and Bad News For Individual Privacy

There's good news and bad news from the courts today on whether information on a computer system is treated as private for the purpose of government investigations. First the good news: as described here, the New Jersey Supreme Court has held that, under the New Jersey constitution, people have an expectation of privacy when they are online. The practical effect of this is that a grand jury warrant would be necessary for police in New Jersey to obtain access to that information. One important point in the decision is that it relied on the New Jersey, rather than the U.S. Constitution. This is important, because it means that the U.S. Supreme Court can't overturn the decision on appeal. Thus, until there's an amendment to the New Jersey Constitution, or until the New Jersey Supreme Court reverses itself, an online expectation of privacy will be recognized in that state.

And on the subject of Federal Courts reversing privacy friendly decisions, that brings us to our bad news: the 9th Circuit has reversed a lower court ruling which stated that digital devices are too personal for police at the border to be allowed to search them without cause. In its ruling, the 9th circuit focused on the "border exception" to the fourth amendment (NOTE: don't you love a 4th amendment with exceptions?) and said that no reason whatsoever is necessary for border agents to search digital devices.

via BoingBoing.

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