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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90453
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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NJ LAW QUESTION ---- can law enforcement in nj obtain internet

Customer Question

NJ LAW QUESTION ---- can law enforcement in nj obtain internet service provider information for the purposes of finding out who wrote an email or webmail without a grand jury subpoena and/or a warrant signed by a judge?
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

The first thing is that law enforcement will not and cannot seek any information at all unless the emails are evidence of some criminal act they are investigating. If they are investigating a crime and the emails are required to prove their case or to lead them to the discovery/identification of the defendant, then they would need to obtain a warrant/subpoena from the court to the internet service provider for the identification of the owner of the email account. A grand jury subpoena can also be used, but the police do not usually go that route, they get a court subpoena/warrant signed by a judge just like they would get a search warrant and would have an affidavit attesting to probable cause for the issuance of the warrant to the ISP to obtain the account owner's information.

Thank you so much for using JustAnswer.com. I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. PLEASE use REPLY to EXPERT if you would like more information or if you feel something was not included in your answer.

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Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Customer: replied 1 year ago.

YOU TOOK AN ASSUMPTION NOT IMPLIED, THAT THE WRITER OF THE EMAIL OR WEBMAIL WOULD BY A SUSPECT AND NOT A WITNESS.


IN THIS CASE I AM TALKING ABOUT A WITNESS, THAT CONTACTED THE COUNTY PROSECUTORS OFFICE THROUGH THEIR OWN WEBSITE- WEBMAIL-- TO GIVE THEM INFORMATION ABOUT POLICE OFFICERS-- AS IN INTERNAL AFFAIRS, WHERE IN NJ YOU ARE ALLOWED TO IT ANONOMYOUSLY.


 


JUST TO CLARIFY, THEY ARENT ALLOWED UNDER THE LAW TO CONTACT THE INTERNET SERIVE PROVIDER AND OBTAIN THE ISP INFORMATION, WITH A WARRANT OR grand jury subpoena, CORRECT?


 


ALSI IM NOT SURE YOU ARE AWARE THAT BACK IN 2008 THE SUPREME COURT OF NJ RULED UNAMINOUSLY, THAT WARRANTS ARE NOT OK, YOU NEED A GRAND JURY grand jury subpoena TO AS LAW ENFORECEMENT TO OBTAIN THE ISP INFO


 


PLEASE GIVE ME MORE FEEDBACK, IN CASE I AM MISSING SOME UNDERSTANDING,...

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

No, I did not take an assumption, but generally in order for law enforcement to get a subpoena from a grand jury the person has to be a suspect of a criminal act. The grand jury will not issue a subpoena for this information unless the person is a suspect in an offense or the police and DA can demonstrate that the person they are seeking is a "material witness" which is a party without whom a major criminal prosecution cannot take place.

They cannot use the subpoena/warrant process legally to simply track down anonymous complainants, the court/grand jury would not find any probable cause to sign any subpoena or warrant for that reason. Regardless of a court or a grand jury issuing the subpoena, there still has to be probable cause for issuance of one to get the information.
Customer: replied 1 year ago.

OK,.... so this is what happened to me back in the spring/summer of 2009. i wrote on the webmail section of the presecutors office information- complaints, if you will, concerning \one officer in the prosecutors office, and another actual townh prosecutor,...... after doing so,...... about a week later a person with the rank of captain at the county prosectors office and another dectective, showed up at my front door,..... asking for my father,...... i asked why,.. they said someone was writing emails from here to them,.. i asked how o you know that,.. they said they got the info from cablevision,...... i said my fathers been dead since 2002, i wrote the emails, abnd invited them inside to sit down and talk about it,.....


 


i later found out this was an ilegal act by them,.. to get that isp info to track me down, because i told them about things that were ilegal officers i know did,.....


 


and i did not put my name or adrswess or phone number in the boxes in the webmail-- that all said optional to submit,.. so it submittecd it anomobnouisy


 


 


just so we are clear they violated me righs here,.. our rights,


 


so i recently now last week or so,.. put in an ionternal affairs complaint about what happened with an asisstant monmouth county prosecutor,... how took the complaint over the phone, amd by law must imjnvestigate it impartially and tell me what he says,


 


am i ok so far?


 


 


 

Customer: replied 1 year ago.


you lreft before it was over, ad it was really close

Customer: replied 1 year ago.
Relist: Other.
was close to finishinbg after 2 reposnses, just left, didnt finish
Expert:  Attorney Wayne replied 1 year ago.
PLEASE DO NOT use the rating system until satisfied. Instead, please click CONTINUE CONVERSATION for more info.

Hello. Let pick up where you left off with the last expert. I think the problem arose when you rated his work as "Bad Service;" Many customers think that this is a signal to the expert that they need more help. But, in fact, it is a ding against the expert, who often assumes the customer is not going to accept an answer.

But I can see from the overall context that this was probably a misunderstanding of the system here -- so I'm willing to give a try to provide the information you seek.

The key legal standard involving emails is found in the federal Electronic Communications Protection Act (or ECPA). It sets up a two-tiered system for police access to email, based on time. Police can get access to any emails stored on a server for more than 180 days without a warrant or subpoena. http://www.law.cornell.edu/uscode/text/18/2703

You can read more about the controversy this has created at this site:
https://www.cdt.org/issue/wiretap-ecpa


This is part of a host of ways that privacy protections, such as court order/subpoena requirements, from the age of the telephone as primary means of electronic communication, have been whittled away as we moved to digital communications. There's a great summary of the laws on this issue at this site (written for non-lawyers, so it is easy to grasp!)

http://www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-your-digital-data

So if the emails are more than 180 days old, there is little legal protection from police requests to ISPs when the cops didn't get a court to review the request and issue an order.

If they are newer, there are ways police can get around it. If they were sent via mobile phone networks, location data that does not reveal the message itself is considered fair game under court rulings in the area.

Please let me know of any follow-ups or clarifications needed, if this is not on point for you.

I wish you all the best.
Customer: replied 1 year ago.


EXCUSE ME,BUT AS TOP YOUR FIRST SENTENCE, THE RATING SYSTEM DOES INCLUDE UNSATISFACTORY RESPONCE,, SO WHAT THEY HEWCK ARE TYOU ASKING ME TO DO?? GIVE UP MY CONTRACTED RIGHT TO SAY I DID NT LIKE THE ANSWER------ THE SUPREME COURT OF NJ CECALRED IN 2008 , IN STATE V READ YOU CAN NOT HAVE AJUDGE SING A WARRANT FOR THIS STUFF, IT MUST BE A GRAND JURY,... SO THE GUY WAS WRONG, IT WAS AN UNSATIDIFACTORY ANSWER,-----


 


YTOU ARE WRONG,, ON CITING THE FEDERAL STUFF,.. STATES SUOPERCEED FEDERAL IN STATE COURT,.. THIS IS BNOT A FEDERAL ISSUE,......


 


FEDERAL LAW ONLY APPLIES INTHIS TYPE OF THING TO FEDERAL CASES,


 


A PERSON AMING AN ANONOMYOUSE INTENRAL AFFAIRS COMNPLIANT IS ONLY SUBJEC TO STATE LAW,


 


 


 


 

Expert:  Attorney Wayne replied 1 year ago.

I beg to differ, based on my years as a lawyer, as to federal law. State law does not supercede federal law just because something is in state court. If that were true, the United States Constitution would not apply to state courts -- which is simply not in the least bit true.

Your First Amendment rights apply and are applicable in proceeding heard in state courts. The Civil Rights Act of 1964 similarly applies to matters in state courts. Sometimes a state judge may do the wrong thing and ignore such laws, but that does not make it right or legal. The part of the US Constitution called the Commerce Clause is the key to this supremacy of federal law, even in state court.

What may be confusing is that states can add more protection to the federal law unless the Federal Law says they can't. This is known, in legal parlance as "preemption."

In this case, the Federal law governs, unless a state law gives more protection. As it happens, New Jersey has not enacted any additional protections and the federal law allows the police to seek emails older than 180 days without subpoena or other court order.

I am sorry the law is not what you hoped it would be -- but I imagine you came to us looking for truthful and accurate legal information presented with integrity. That is what I presented. I hope you will recognize the truth matters to us and to most users, as a legal information web site that simply provides happy answers rather than true answers would be worthless.

Thanks for contacting us. If any of this legal information requires further clarification, please post it the next text box.

I wish you every success in resolving this matter.

Customer: replied 1 year ago.


ESCUSE ME, BUT AGAIN TO YOUR FIRST SENTENCE, PEOPLE IN NJ WOULD BE ALLOWED TO JURY TRIALS FORE THINGS AS A LIITLE AS DUI,.. THEY CARE NOIT,.. YOU KNOW WHY,, CAUSE STATE LAW SUPECEEDS FEDERAL LAW IN THIS STUFF,.....


 


BUT YOU ARE GETTING OFF TOPIC HERE


 


I AM NOT TALKING ABNOUT FIRST AMENDMENTS RIGHTYS,.. IF ANYTHING IRTS THE 4TH AMENDMENT


 


 


BUT , LET ME GET TGHIS CLEAR, IF THE SUPREME COURT OF NJ RULES THAT NO LAW ENFORCEMENT AGENCY OPERATING IN THE STATE OF NJ CAN LEGALY OBTAIN ISP INFORMATION UNLESS THEY HAVE A GRADE JURY SAYING THEY CAN


 


THAT LAW ENFOECEMENT IS ALLOWED TO BLOW THAT OFF, AND GET IT ANHYWAY,.. JUST TO FIND OUT WHO WROTE THEM COMPLAINTS, FOR THE PURPOSES OF HARASSING THE WUITNESS?


 


THIS IS WHAY YOU ARE SAYING?


YES
?


 

Customer: replied 1 year ago.


COMPLETLY UNREPSONSIVE THE NJSTAE LAW, KEEPS GOING FEDERAL

Expert:  Attorney Wayne replied 1 year ago.

The issue was preemption. And the examples provided helped show how preemption works. Nonetheless, let me give one more attempt to assist with the information you seek.

I believe you are referring to State v. Reid, a 1993 case you can read here.
http://www.javerbaumwurgaft.com/documents/State_v_Reid%5B1%5D.pdf

This case is only about ISP subscriber records -- not about access to emails. And the issue arises, in part, under the fourth amendment to the US constitution' exclusionary rule (as applied through a parallel part of the NJ Constitution) -- which is about whether evidence can be used against a defendant if it is illegally seized. Please read the case at the link above, if you don't believe me.

 

The court did not say the police could not obtain the information, just that it could not be used as the basis of the prosecution.

You asked if the police could get it -- not if a prosecutor could use it at trial. I provided the correct information -- as the case you reference is only about use of subscriber information at trial by the prosecution -- not about the ways police get access to email.

These distinctions that may seem like hair-splitting to non-lawyers are, in fact, the core of legal reasoning so things are properly categorized and the right analogy is used for the right phenomenon.

To further explain with concrete examples:
Other laws make it illegal, for instance, to intrude on a phone call (the Safe Streets Act, for instance) without a court order/subpoena. The actual act of tapping a phone without court order is illegal.

But under the Reed case, there is no issue about whether obtaining the information is itself illegal (a crime, as phone-tapping is). It is simply a matter of whether or not the ISP subscriber records are admissible as evidence in a criminal trial.

Unless there is a criminal trial in which a prosecutor attempts to use the type of subscriber information in Reed, the Reed case is simply irrelevant.

You asked if the police could get email records without a subpoena or other court order. I let you know how they could, and not break the law.

You didn't ask if what they found could be arguably excluded from a criminal trial -- only if they could legally get it just by asking for it.

I hope you will recognize that you have been provided true and accurate information. Perhaps it did not support the concept you had in mind, but it is factual and provided with integrity -- and while one is free to reject it for any reason or no reason at all, I do hope you will now see that the information is accurate and responds directly to what was asked.

I wish you all the best in this matter.

Customer: replied 1 year ago.

DID YOU READ WHAT I WROTE, IM NOT TALKING ABNOUT ACESS TO EMAILS, I AM TALKING SPECIALLY ABOUT THE ISP INFORMATION


 


AGAINJ YOU ARE GOING TO FEDERAL LAW, NOT NJ LAW, THE FIRST LINE CIN MY QWUESTION TO JUSTANSWER WAS ABOUT NJ LAW


 


SO, AGAIN,... YES OR NO ANSWER


 


THIS ISALL IM A LOOKING FOR , NOT A DIATRIBE ABOUT POLICY ISSURES


 


A SIMPLE YES OR NO


 


IF , UNDER THE CURRENT LONG TIME ATTORNEY GENERAL OF NJ GUIDLINES AND CORRESPONDING STATE LAW AS TO ANOMOMYOUS MJ INTYERNAL AFFAIRS COMPLAINJTYS, COMBLINED WITH THE NJ SUPRE COYURT RULIN G IN STATE V REID


 


YOU ARE SAYING THAT THE COUNTY PROSECUTORS OFFICE HAS AN ABSOLUTE RIGHT TO GO TO AN INTERNET SERVICE PROVIDER, FIND OUT WHO MADE THE COMPLAINTS, GO TO THEIR RESIDENCE, AND HARASS THE COMP[LAINANT?


 


SIMPLE YES OR NO ANSWEWR IS REQUIRED HERE


 


 

Customer: replied 1 year ago.

NOT RESPONSIVE TO THE QUESTION,.. YES OPR NO SIR,,

Expert:  Attorney Wayne replied 1 year ago.
I'm sorry. The facts are these:

No New Jersey law makes it illegal for the police to seek information from ISPs about emails or where they came from.

The Reed case (NJ Law, not federal law) only applies to criminal prosecution. If the police got the ISP data without a subpoena or court order, it can't be used in a prosecution. Unless someone is being prosecuted, the Reed case is irrelevant.

In the absence of a state law that makes it illegal to seek the information without a subpoena, there is nothing to prevent application of the federal law. If you don't want to consider the limits in the federal law, that's fine. BUT NJ Law does not prohibit the police action you describe at all -- it only makes it unusuable as evidence in a criminal trial.

Those are the facts and the answers. If you do not like, I can't provide you with anything else -- because I have integrity will not make things up. So please either be satisfied that I've given you the best answer I can. If you still don't like it, I will be happy to opt out of the question.
Customer: replied 1 year ago.


IM SORRY, I PAID FOR A YES OR NO ANSWER, NOIT A DIATRIBE FOR YOU


 


BUT I GUESS YOU ARE SAYING THAT THE MONMOUTH COUNTY NJ PROSECUTORS OFFICE IS GOING TO SAY THAT THEY CAN FIND OUT WHO THE HELL IS TELLING THEM WHAT OFFICERS ON THEIR FORC E WAS DEALING DRUGS,.. AND HARASS THE PERSON TELLING THEM THE INFO,. LEGALLY, FOR THE PURPOSE OF JUST SAYING F-IT,.. WE DIONT WORK FORT THE PEOPLE,.. LETS JUST HARASS WITNESSES TO CEIMES TILL THEY GO AWAY OR DO SOMETHING ILEGAL,.. THEN WE GOT THEM


 


IS THIS THE COUNTRY YOU WANT TO LIV E IN?


 


WOULDNT IT JUST BE EASIER TO FOLLOW THE INTENTIONS OF THE TAXPAYERS, ARE FIRE POLICE OFFICERS AND LAW ENFORCEMENT OFFICIALS THAT ARE INTENTIOBNAL TRYING TO SCREW US OVER?


 


LISTEN


 


INTERN AL AFFAIRS COMP[LAINTS ARE STATE LAW,.. THIS WAS IN ANJOTHEF THREAD I HAD ON HERE,.. THERE IS NO LACK OF STATE LAW


 


IF I WANT TO REMAIUN ANONOMYOUS, I HAVE THE RIGHT TO


 


YOUR ANSWER IS UNRESPONISIVCE

Customer: replied 1 year ago.

YOU CAN SA IT WAS WRONG FOR STEPHEN KOBNDROP TO BE A COACAINE DELEAER AND A COCAIN PUSHER ON STOCKETON CAMPUS, YOU CAN SAY IS WAS OK HE DID IT,.. BUT WHAT YOU CAN NOT DO IS NOT REPLY TO ME, AND WHAT YOUCANT DO IS COME AFTER ME FORE TELLING THE TRUTH

Expert:  Law Educator, Esq. replied 1 year ago.
IF you want a "yes" or "no" answer, then under NJ law, not federal law, the answer is "no" without probable cause they cannot get a subpoena for the information from the grand jury.
Customer: replied 1 year ago.

AND AS WE AL.,L KNOW, THERE IS NO WAY A CAPTAIN FROM THE MONMOUTH COUTY PROSECUTORS OFFICE WEN TO A GRAND JURY AND ASKED TO GET MY ISP INFORMATION IN ORDER TO GO AFTER A POLTICAL CONNECTED ODDICER,.. SO THEY DOD IT ILLEGALY,...


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
That is what we have been saying, they cannot legally get the ISP information without probable cause. Thus, if they went to get the ISP information they either did it without a subpoena or they perhaps falsified information to get a subpoena.
Customer: replied 1 year ago.


THEY NEVER GOT A a subpoena. ,.. WHAT PROBABLE CAUSE COULD THEIR HAVE BEEN,........ THEIR INTENT WAS TO HSARASS ME OVER WHAT I WRTE THEM CONCERNIONG SGT STEPKEN KONDROP OF THE MONMOUTH COUNTY PROSECUTORS OFFICE BEING A POT AND COCAINE DEALER ON THE STOCKTON STATE COLLEGE CAMPUS


 


THE DIDNT GO TO A GRAND JURY,.. THEY ASK FOR AND GOT THE IUSP INMFDORMATION IULEGALLY


 


SO NOW I HAVE THE INTERAL AFFAIRS COMPLAINT INTO Richard E. Incremona

First Assistant Prosecutor


 


AND I AM AWAITING MY LAWFUL RESPONSE,.....

Expert:  Law Educator, Esq. replied 1 year ago.
You did not ask all of that, you asked if they "could" get a subpoena and then wanted a "yes" or "no" answer and the answer is "no" they cannot get one absent probable cause.

If they obtained the information without a subpoena then you have grounds to file another complaint for them obtaining information without the subpoena in addition to a civil suit against them for violating the law in obtaining information without a properly issued subpoena and suing them for invading your privacy without a proper subpoena.
Customer: replied 1 year ago.


NO I DID NOT ASK IF THEY COULD GET A SUBPENA OR NOT,... LEGALY OR IULEGALY,.. I ASKED IF THEY COULD LEGALY OBATIAN THE ISP INFORMATION,...YOU MIS READ MY QUESTYION SIR


\


 


THEY WEN TO THE CABLE COMPANY AND OBTAINED THE INFORMATIO B WITHOUT A SUBPEANA,.. MY QUESTIO IS CAN THAT HAVE HAP;PENED LEGALL;Y


 


YOU ARE MISREADING MY QUESYTION


 


 


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response, I think you too are misreading my answers as well. You asked, "can law enforcement in nj obtain internet service provider information for the purposes of finding out who wrote an email or webmail without a grand jury subpoena and/or a warrant signed by a judge?" Answer: NO without probable cause.

If the Agency did go and get your information, they did so illegally by either lying to get a subpoena or some other illegal method. Legally they COULD NOT go to the cable company without a subpoena and if they did the cable company SHOULD NOT have given the information.

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