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The New Jersey Supreme Court on Sept. 24 wrestled with the question of how much information law enforcement officials need when asking for a warrant to delve into the contents of a personal computer. In State v. W.T.E., A-81/82-01, a 52-year-old Nutley, N.J., man, identified only as W.T.E., was arrested after he sent child pornography to members of an America Online chat room in 1999. A sheriff’s officer in San Bernardino, Calif., who was surfing the Internet to snare child-pornography distributors, contacted AOL and asked for information about the holder of the screen name used to transmit the material, BTE324. The carrier provided the customer’s name and billing address. The officer then contacted Nutley police, who obtained a search warrant and found the user’s computer. New Jersey Chief Justice Deborah Poritz seemed skeptical that the information given by AOL to the police was enough to justify a search warrant. She wondered aloud whether that information was sufficient to determine whether there was a computer in the house, or whether the photograph was even transmitted from that location. The address kept by an Internet Service Provider for billing purposes does not necessarily mean there’s a computer at that location, or that the person whose name is on the account is the one who may have transmitted the photograph, Poritz observed. “It was the only location [the police] had,” answered Deputy Attorney General Wendy Way. “Based on the information they had, they were able to articulate probable cause that child pornography was emanating from that address.” Justice Virginia Long also expressed some apprehension, noting that there was nothing in the warrant to suggest there was a computer in the house or identifying who in the house might be BTE324. “Inferences can be drawn that a computer is on the premises,” Way responded. Justice Barry Albin said the warrant served on AOL for the subscriber’s name and billing address was obtained in Virginia, where AOL is headquartered. Is a warrant issued for information in another state valid for a warrant issued in New Jersey? he asked. “It’s done every day,” said Way. W.T.E.’s lawyer, Nutley solo practitioner Paul Jackson, said the warrant violated his client’s expectation of privacy. “You don’t lose your expectation of privacy when you turn something over to a third party,” he said. Justice Peter Verniero asked Jackson why he believed the warrant was invalid. “There is nothing” to indicate W.T.E. was the person who transmitted the photograph. Had the police done something more to indicate the precise location from which the photo was sent and when it was transmitted, that may have been enough to obtain a valid search warrant, Jackson said. W.T.E. is serving a five-year term of probation, having pleaded guilty to endangering the welfare of a child. Way asked the court to remand the case for resentencing, saying that a noncustodial term was too lenient for a second-degree crime. “Child pornography is child endangerment,” she said. “We don’t tolerate for an instant the abuse of a child.” The sentence “is a travesty.” Jackson said Essex County, N.J., Superior Court Judge Harriet Farber Klein did nothing improper in sentencing a first-time offender to a noncustodial term, even though a second-degree crime carries the presumption of incarceration.

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