The Court continued in relevant part: The wiretap statutes are infused with constitutional considerations, as identified in Berger and Katz. The Constitution sets the benchmark for a reasonable search: the use of a warrant based on probable cause. When a lesser expectation of privacy is involved, or when a search involves a minimal intrusion on an individual’s privacy, fewer protections are required. The same is true in reverse. More intrusive searches call for enhanced protections. Here, the privacy interests at stake and the level of intrusion are substantial. There are no limits to the content the State seeks, yet the CDW orders have no minimization requirements. In essence, the State seeks the functional equivalent of a wiretap — but without the added safeguards the wiretap acts require. If it were possible to obtain the contents of future electronic communications from Facebook in real time, the parties agree the wiretap statutes and protections would apply. The same privacy interests exist here. A warrant based on probable cause is not enough to monitor prospective electronic communications in nearly real time, on an ongoing basis. The principles set forth in Berger and its progeny require the State to make a heightened showing and adhere to the additional safeguards provided in the wiretap acts. The Court’s conclusion is grounded in the privacy protections the State Constitution guarantees.
Reviewing the required enhanced protections and time limits established by the State Wiretap Act, the Court notes that the 10-day time limit set forth in Rule 3:5-5 is not the right benchmark. The Rule does not apply here. Nor does it resolve any of the statutory or constitutional concerns the CDWs present. Facebook contends the CDWs are flawed because they represent “the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause.” The heightened protections of the Wiretap Act address that concern. The Court affirms at the same time the principles in State v. Earls, 214 N.J. 564 (2013).
Turning to additional arguments raised by the State, the Court explains why the CDWs here are not anticipatory warrants and why the reasonable continuation doctrine does not apply. The Court’s ruling appears to align with practices elsewhere. The arguments presented do not identify any jurisdictions, other than New Jersey, which have sought prospective electronic communications based on a search warrant.
As a practical matter, the State is making novel arguments in support of their desire to not have to put together a detailed wiretap application. At the end of the day, those applications are almost always approved by a judge and the decision to approve them is given enhanced deference by reviewing courts.
