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Internet users surrender any privacy rights they have to their subscriber information when they sign up for online service, a New Haven Superior Court judge has ruled in a matter of first impression in Connecticut. The decision by Judge Nicola E. Rubinow rejects a motion to suppress evidence that was brought by a Southbury family whose computer was seized by police investigating the alleged online harassment of a Quinnipiac University student. Megan Forgione was a freshman at Quinnipiac when her ex-boyfriend, Andrew Hayden, complained to campus technology officials that an Internet intruder was harassing him, according to court filings. Hayden claimed his e-mail messages had been deleted, his course schedule altered and his Quinnipiac password changed. University personnel traced access to Hayden’s account to a specific Internet protocol address. An IP address is a unique number assigned to every end-user’s computer that is connected to the Internet. It identifies a user’s Web location and serves as the computer’s routing address for data sent across cyberspace from other end-users. Quinnipiac officials determined the IP address in question originated from St. Louis-based Internet service provider Charter Communications and went to Hamden, Conn., police, who obtained a warrant to access the end-user’s subscriber information. In response, Charter identified the IP address as belonging to the Forgione household. A subsequent search warrant resulted in the seizure of three computers, a wireless router and various related items from the Forgione home last July. Though criminal charges have yet to be brought in the matter, the family retained criminal defense attorney Charles E. Tiernan III, of New Haven, Conn., Lynch, Traub, Keefe and Errante, to pre-emptively file a motion to suppress, as well as a court order to force the police to return their seized property. But ruling Jan. 6, Rubinow noted, “Viewing the evidence as a whole, it is clear that the Forgiones ceded any expectation of privacy in their underlying subscriber information, such as their residential address and other information, when they voluntarily entered into an agreement for Charter to provide them with an internet account servicing their home in Southbury.” The decision is one of first impression in Connecticut state courts. The few cases to have considered the issue of an Internet user’s expectation of privacy in his or her subscriber information have all come down on the side of the government. Courts have held that individual subscribers have no standing under the Fourth Amendment. “It’s a novel issue. There’s not a lot [of case law] out there that has decided the issue,” said privacy law attorney Daniel J. Klau. Klau, of Pepe & Hazard’s Hartford office, represents Clifton Freedman in his suit against American Online for voluntarily disclosing Freedman’s subscriber information in 2001 to the Fairfield (Conn.) Police, even though they did not have a valid warrant. Last August, U.S. District Judge Peter C. Dorsey found that Freedman has no standing under the Fourth Amendment to challenge AOL’s actions. Freedman is in the process of appealing that decision to the 2nd U.S. Circuit Court of Appeals. Dorsey’s summary judgment ruling against Freedman hinged on Freedman’s voluntary disclosure of the information to a third party, thus assuming the risk that the third party — AOL — would disclose that information to the government, Klau said. Klau is arguing, however, that Freedman’s Internet subscriber agreement actually served to create a legitimate expectation of privacy in the identifying data provided to AOL. “ISP privacy policies, almost without exception, promise that they will not divulge the real identity of a person associated with a screen name. That creates an expectation of privacy,” Klau said. In the state court case, Rubinow analogized an IP address to a telephone number. “The IP address identified the Forgione street address, like a phone number would have in a phone book,” she wrote. But Tiernan said the existence of the federal Electronic Communications Privacy Act supports his clients’ reasonable expectation of privacy in their subscriber identification. The ECPA’s specific requirement of a warrant for police to obtain subscriber data assumes a subscriber’s legitimate privacy interest in that information, Tiernan said, adding, “It’s common sense that you wouldn’t need a warrant if there was no expectation of privacy to begin with.” With Rubinow’s ruling, Tiernan said his clients will likely wait to see if any criminal charges are brought before pursuing additional court action. Klau said his case against AOL is distinguishable. AOL provided Freedman’s subscriber information without a signed warrant from the Fairfield police. A previous court ruling granted summary judgment in Freedman’s favor for violation of the federal ECPA, which requires police to have a valid warrant before they can obtain subscriber information. Freedman was accused of sending threatening e-mails to a political opponent. He claimed the postings were political satire. Klau asserted that, when the government’s searches concern First Amendment rights, heightened scrutiny is necessary, in the form of signed warrants. “To protect the right of anonymous speech on the Internet, police should be required to substantiate their claims with a warrant,” Klau told The Law Tribune. “There’s a close link between the First and the Fourth amendments. The rights protected by the Fourth Amendment arose in response to the King’s destruction of printing presses.” “In many ways the Internet is the 21st-Century version of the first printing press; it constitutes a technological development that greatly increased the capacity of individuals to communicate with each other,” Klau wrote in a memorandum filed in the Freedman case. “Consequently, the Court cannot underestimate the threat to freedom of expression posed by unrestricted government searches of Internet screen names.”

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