New Jersey Law Journal

August 3, 2007

INTERNET CIVIL RIGHTS GOVERNED BY FEDERAL ANALYSIS
STATES ARE RESTRAINED FROM APPLYING EXPANDED PROTECTIONS TO INTERNET TRANSACTIONS

By Jonathan Bick

Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].
8/3/2007 NJLJ

Civil rights protection is a function of a person's physical location. State courts use their constitutions to expand civil liberties protections beyond those rights granted by the Federal Constitution's Bill of Rights. New Jersey, New York, Oregon, California, Texas, Maine and others have each identified additional constitutional protections beyond those in the federal document. Since Internet transactions transcend state boundaries, however, states may be restrained from applying such additional protections to Internet transactions.

The states' ability to grant broader protections is based upon the presumption that states are nominally sovereign in their own jurisdiction. The notion of sovereignty in turn relies upon the state's ability to effectively police their jurisdiction. The Internet's multi-jurisdictional characteristics diminish a state's police power and substantiate the limitation of civil liberties with respect to Internet transactions.

The Internet functions because computers and people located in multiple jurisdictions are all using identical protocol. Because residents of various states operate the Internet in the same way, state constitutions cannot be interpreted independently of the Federal Constitution. Without distinctive Internet use within each state, the application of a state's constitution to a civil liberties issue involving the Internet would result in problematic jurisprudence.

When the Supreme Court, in Barron v. Mayor of Baltimore, 32 U.S. 243, 247- 49 (1833), ruled that the Bill of Rights operates as a limitation on federal but not state government, the Constitution's Bill of Rights was used to constrain the actions of state governments from limiting national sovereignty. Since the adoption of the Fourteenth Amendment, all of the major Bill of Rights' guarantees are interpreted by the Supreme Court to constrain state, as well as federal, action. Thus, courts view the Federal Bill of Rights as the minimum level of protection that must be afforded to U.S. citizens across the country and allow states to expand such rights within their jurisdictions. This allowance contemplates local differences among the states with respect to transactions, which may not apply to Internet use.

Federal and state divisions are dramatically highlighted by their view of a person's civil liberty interest in his own trash. The federal courts allow police more liberal access to the content of discarded materials than certain state courts.

U.S. Supreme Court, in California v. Greenwood, 486 U.S. 35, 37 (1988), held that the Fourth Amendment to the U.S. Constitution does not prohibit police from inspecting the contents of trash left outside a person's home for disposal. Subsequently, both the New Jersey and Washington Supreme courts each held that their respective state constitutions prohibited this police activity in State v. Hempele, 576 A.2d 793, 810 (N.J. 1990); and State v. Boland, 800 P.2d 1112, 1116 (Wash. 1990). Due to the Internet's interstate nature, state courts that grant greater protection to individual rights than those granted by the U.S. Supreme Court are subject to reversal.

The constitutional treatment of electronic trash is potentially significant. Electronic trash, such as deleted e-mail, is similar to traditional trash in that it does not disappear when it leaves the holder's possession.

The two most common e-mail retrieval protocols are POP and IMAP. The fundamental difference between POP and IMAP is that POP send users e-mail to be stored on their personal computers for access; IMAP stores e-mail on a computer controlled by the e-mail service. Thus, when a POP user converts e-mail to trash, it is held within the user's PC; when an IMAP user converts e-mail to trash, it is in the possession of a third party.

Under federal law, police need not obtain a search warrant to inspect trash in the possession of a third party. Whereas, under New Jersey law, police need to obtain a search warrant to inspect trash in the possession of a third party. Consequently, the type of e-mail service (POP or IMAP), as well as the location of an IMAP e-mail user's server, may be significant for police searches.
In addition to police access to electronic trash, states may afford communications greater protection under their respective state constitutions than under the Federal Constitution. In Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987), the Massachusetts Supreme Court prohibited admission of evidence acquired by electronic recording with only one-party consent. Such a position may be used as a basis for expanding the rights of Massachusetts Internet users beyond the rights afford by the Federal Constitution with respect to their e-mail or Internet phone transactions.

The fact that the Internet is composed of essential elements distributed both within and outside of any particular state makes policing Internet transactions difficult if not impossible for one state. Once it is found that a state cannot police a transaction due to the transaction's multistate nature, a state should concede it is not the proper entity to regulate that transaction. Since regulation includes both the imposition of duties and rights, a state should not be allowed to impose its civil liberty views on the Internet transaction because it is beyond its police powers.

A second argument advanced by critics of independent state constitutional interpretation generally, observations that rights provisions in state constitutions are identical to the federal clause and hence, absent a clear reason for departure, state courts should give such provisions the same interpretation which the Supreme Court gives the corresponding federal provisions. Both New Jersey and Washington demonstrated special state historical characteristics to support their constitutional diverge with respect to police access to trash. However, the Internet's multi-state characteristics make this argument nonviable.

In People v. Scott, 593 N.E.2d 1328 (N.Y. 1992), the New York Court of Appeals contemplated whether to interpret the search and seizure provision of the state constitution more broadly than the Fourth Amendment. The majority justified deviation from federal doctrine by citing New York's tradition of allowing unusual behavior. The Internet only works for users who strictly obey Internet protocol; consequently, the behavior of all Internet users is identical from a practice prospective. Additionally, Internet use is so new that arguments for state distinctiveness with respect to Internet transaction tend not to be wholly persuasive. The Internet sprang into existence after the last state Constitution was completed; this tends to negate the argument that because states borrowed constitutional language from each other prior to the drafting of the federal Constitution, they should not be bound by federal interpretation.

In sum, independent state interpretation of civil rights cannot apply to Internet transactions because of the multi-jurisdictional characteristics of the Internet. The underlying technology requires all Internet users to agree to use identical protocols -- there is no individuality among users in the various states.