Facebook and the Wiretap Statute (Part 1)

by | Apr 1, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On June 29, 2023, the New Jersey Supreme Court decided the consolidated Mercer and Atlantic County cases of Facebook v. State of New Jersey. The principal issue before the Court concerned whether a wiretap order was required to compel Facebook to disclose user account info every 15 minutes for 30 days.

Chief Justice Rabner wrote for the unanimous Court in relevant part: The Court considers whether Facebook can be compelled to provide the contents of two users’ accounts every 15 minutes for 30 days into the future based only on probable cause, the ordinary standard for a search warrant, or whether the State must instead satisfy certain requirements and apply for a wiretap order, which requires an enhanced showing — one beyond probable cause — because gaining access to private communications in real time is considerably more intrusive than a typical search.

The 15-minute delay is because of technical limitations; it is as fast as Facebook can provide the information. Even though it seeks extensive information from private user accounts that does not yet exist, in as close to real time as possible, the State argues that, considering the 15-minute delay, it is obtaining “stored communications,” which do not require a wiretap order. Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order. In the two matters under review, trial courts quashed the State’s request for prospective information based on a Communications Data Warrant (CDW), which is the equivalent of a search warrant and can be issued on a showing of probable cause. The Appellate Division consolidated the cases and held that the State could obtain prospective electronic communications with a CDW, reasoning that the wiretap statute applied to the contemporaneous interception of electronic communications, not efforts to access communications in storage. 471 N.J. Super. 430, 455-56, 459 (App. Div. 2022).

To ensure compliance “with the federal and state constitutions and New Jersey’s warrant procedures,” however, the Appellate Division imposed a 10-day limit on the duration of the CDWs, importing the shorter deadline from Rule 3:5-5(a), which sets a time limit for the execution of search warrants. Id. at 463, 465. The Court granted Facebook leave to appeal, 251 N.J. 378 (2022), and the State leave to cross-appeal the 10-day limit, 252 N.J. 36 (2022).

The fact that no other Court in the country has granted such a request from the State should weigh heavily in favor of Facebook. New Jersey has historically provided greater constitutional protections than most states and the federal constitution.