In October, New Jersey enacted cybercrime legislation signed by Governor Corzine authorizing the interception of wire or electronic communications of “computer trespassers.” A 3761 (2009). For a copy of the legislation, click here.
Under A 3761, persons acting “under color of law” are authorized to “to intercept the wire or electronic communications of a suspected computer trespasser transmitted to, through, or from a computer or any other device with Internet capability.” Id. § 1(a). Such interception is permissible only if the owner or operator of the computer or device authorizes the interception, the person is lawfully engaged in an investigation, the investigator has reasonable grounds to believe the communication’s contents are relevant to the investigation, and the interception does not acquire communications other than those to or from the computer trespasser. Id.
This legislation may pertain to our clients involved in telecommunications or clients who act as Internet Service Providers. These clients may face law enforcement requests to cooperate in the interception process.
The legislation attempts to provide an additional mechanism for law enforcement to protect the public from Internet threats. Criminal defendants can challenge the legality of the interception. A successful challenge would exclude the evidence from any trial, hearing, or proceeding. Id. § 1(c).
Stephen Wu
Partner, Cooke Kobrick & Wu LLP