Facebook and the Wiretap Statute (Part 4)

by | Apr 7, 2024 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Chief Justice Rabner continued in relevant part: The Court next considers whether the requests for information in this appeal are subject to the enhanced privacy protections of the wiretap acts. The State argues the wiretap acts do not apply because the stored messages it seeks will not be intercepted contemporaneously, in real time. Although multiple federal circuits have held that an “intercept” must occur contemporaneously with transmission, the word “contemporaneous” does not appear in the ECPA or its state counterpart. Those rulings stem instead from a Fifth Circuit decision that preceded the ECPA and held that the term “intercept” in the 1968 Federal Wiretap Act required contemporaneity. And, significantly, those federal rulings involved purely historical communications, such as cassette tapes, prior postings on a password-protected website, and stored emails. In none of those cases did anyone access communications either while they were in flight or nearly contemporaneously to their transmission. Some Circuit Courts have raised questions about the contemporaneity requirement.

A strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address the situations technology presents today. Nor would it be consistent with the purpose of the wiretap statutes — to protect individual privacy. From a practical standpoint, if a strict contemporaneity approach applied, law enforcement would never need to apply for a wiretap order to obtain future electronic communications on an ongoing basis. It would be only natural to apply instead for a CDW, which is easier to obtain but has fewer safeguards for privacy. And in time, as technology improves, today’s unavoidable 15-minute delay may well get shorter. The logical extension of the State’s position is that law enforcement could avoid the requirements of the wiretap acts by simply asking Facebook to wait a few minutes, while data is stored, before providing electronic communications on an ongoing, future basis. That cannot be right given the underlying aim of the statutes. Based on the language, structure, and intent of the State Wiretap Act, it applies to the near real-time acquisition of prospective electronic communications. Attempts to acquire electronic communications every 15 minutes, for 30 days into the future, are not covered by New Jersey’s equivalent of the SCA. They are instead subject to the requirements of the State Wiretap Act.

A related point for the defense is that the lack of contemporaneous monitoring makes for less effective minimization. Minimization is the process by which wiretap monitors tune in and out of intercepted communications and stop recording for periods of time. If the entirety of the communications is forwarded to law enforcement by Facebook, then there are no periods of time during which the recording of private communications ceases.