The New Jersey Supreme Court continued in relevant part: Federal law authorizes government entities to require disclosure of a communication “that is in electronic storage” for 180 days or less pursuant to a warrant, or that “has been in electronic storage” for more than 180 days pursuant to a warrant or other specified means. 18 U.S.C. § 2703(a) (emphases added). The parallel New Jersey statute, by contrast, makes no mention of “electronic storage.” See N.J.S.A. 2A:156A-29(a). Neither federal nor state law includes enhanced protections for the disclosure of the contents of stored electronic communications.
The Court first considers whether the electronic communications the State seeks are covered by New Jersey’s equivalent to the SCA. Neither the federal nor the state version of the SCA expressly authorizes disclosure of future communications. See 18 U.S.C. § 2703(a); N.J.S.A. 2A:156A-29(a). The commonsense meaning of the words in the federal SCA — “is in electronic storage” and “has been in electronic storage” — do not include content or data that “will be” in storage at a later point in time. The Court explains why the Federal Dictionary Act does not apply. Although some provisions of the ECPA apply to prospective surveillance activities, the SCA, which governs “stored” communications, does not. And the State’s argument fares no better under the State Wiretap Act. The New Jersey Legislature did not incorporate language about electronic storage in N.J.S.A. 2A:156A-29(a). In addition, reflecting the structure of the ECPA, the state code addresses wiretap interceptions at N.J.S.A. 2A:156A-1 to -26 and stored communications at N.J.S.A. 2A:156A-27 to -34. The forward-looking aspects of the act appear in the wiretap sections only, not in the sections about stored communications. The federal and state statutes do not support the use of a warrant to access the contents of prospective electronic communications.
The fact that prospective communications are only addressed by the wiretap act weighs heavily in favor of the defense position. It is a strong indication that a wiretap order as opposed to a traditional search warrant or communications data warrant (CDW) is required here.
