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In a major affirmation of the public's civil rights, the Garden State's Highest Court today unanimously ruled that law enforcement must obtain a wiretap if they want to force near-simultaneous disclosure of private social media postings, and that a warrant alone does not suffice.

Authorities must show probable cause to obtain a warrant. Obtaining a wiretap order requires a higher bar, as they must also demonstrate that other investigatory methods would fail - because they are too dangerous, for example.

The ruling is a major win for Facebook. The case was closely watched by civil liberties advocates.

In a reversal of lower court decisions, the New Jersey Supreme Court today ruled against authorities who argued a warrant is sufficient to obtain nearly real-time release of such communications. That argument is unsupported by federal or state statute, the court said, adding that allowing such releases would effectively neuter New Jersey’s wiretap law.

The appeal involved two consolidated cases involving communications data warrants (CDWs) seeking Facebook data, one in the Atlantic vicinage and one in Mercer. According to court documents, law enforcement had probable cause in both cases to believe that the target Facebook users had committed drug distribution offenses. Both CDWs largely sought similar types of data from Facebook, which included the contents of electronic communications, location data, and basic subscriber information.

The Atlantic CDW directed Facebook to disclose, among other things, the contents of electronic communications from a Facebook account controlled by the user identified as Anthony, from January 1, 2021, through the duration of the order—thirty days after the CDW’s issuance. The Mercer CDW directed Facebook to disclose to the State, among other things, “the contents of stored electronic communication” concerning a user identified as Maurice from December 1, 2020, through the duration of the order - thirty days after its issuance. Included in “the contents of stored electronic communications,” were images, videos, audio files, posts, comments, histories, and the contents of all private messages in all message folders, including inbox, sent, chat messenger, and trash folders, dating back to January 1, 2021 (with respect to the Atlantic CDW) and December 1, 2020 (as to the CDW from Mercer) “through the duration of the order” with respect to both.

The warrants also provided for “real-time” access to such communications via creation of a “cloned,” “ghost,” or “active duplicate account” to be linked to an account or electronic mailbox exclusively controlled by the New Jersey State Police or other law enforcement agencies assisting with the investigation. Both warrants further directed the “installation and operation” of duplicate accounts used to obtain access to these communications that “shall begin and terminate as soon as practicable, and continue for a period of 30 days,” during which time the “devices [could] be utilized 24 hours a day . . . Monday through Sunday.” In total, the CDWs compelled the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days’ worth of historical communications— seventy-four days in the Atlantic CDW; sixty-three days in Mercer.

Facebook partially complied with both CDWs, providing all requested historical electronic communications on the targets’ accounts that were stored on its servers as of the date the CDWs issued, as well as non-content communications, such as, among other things, location information, that occurred during the thirty-day period following issuance of the CDWs. However, Facebook declined to provide the contents of any prospective electronic communications and filed a motion to quash.

In both cases, the trial judge partially quashed the CDWs to the extent they compelled disclosure of the contents of prospective communications. The judges found the future disclosures tantamount to electronic surveillance, necessitating a wiretap order, rather than an ordinary search warrant.

Subsequently, the Appellate Division reversed this ring. It held that only the CDWs and not wiretap orders were required given that the data sought was from information that would be stored by Facebook as compared to simultaneous transmission of information through interception.

In reaching its decision, the Appellate Division emphasized that wiretap orders are only required when information is intercepted. “Because, the officers here would have no way to ‘catch the communications’ at issue ‘in flight,’ before they ‘came to rest’ in electronic storage on Facebook’s servers, the CDWs did not authorize the ‘interception’ of any communications at all, and did not, in that respect, implicate the federal or state Acts,” the court wrote.

The Appellate Division, however, further concluded the CDWs relied upon were too lengthy in duration under our state’s warrant procedures, and therefore required modification. “The compelled disclosures of all prospective contents of electronic communications in a subscriber’s social media account on an ongoing basis for more than four weeks authorizes multiple intrusions into private communications based on a single showing of probable cause, and therefore is contrary to the particularity requirement of the Fourth Amendment under [Berger v. New York, 388 U.S. 41 (1967)],” the court wrote. “For that reason, the CDWs in their present form cannot be enforced as to prospectively stored electronic information.”

On July 11, 2022, the Supreme Court agreed to review Facebook's petition which questioned whether the State may obtain prospective electronic communications from a Facebook account via a CDW or whether a wiretap order was required.

On September 13, 2022, the Supreme Court also agreed to review the Prosecutor's petition which added a second question to the court’s review: “if a CDW is sufficient, must it be limited to a ten-day time period?”

The Court today unanimously ruled in favor of Facebook, saying "New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution, and that allowing releases of electronic communications from a Facebook account via a CDW would make the state’s wiretap statute obsolete because “law enforcement today would never need to apply for a wiretap order to obtain future electronic communications from Facebook users’ accounts on an ongoing basis.”

Authorities must show probable cause to obtain a warrant. To obtain a wiretap order, they must also demonstrate that other investigatory methods would fail — because they are too dangerous, for example — according to criminal defense lawyer Brian Neary. Neary argued on behalf of the New Jersey State Bar Association, which joined the case as a friend of the court.

Google and Microsoft, which joined the case as amici curiae, told the court New Jersey is the only state where police have sought to use warrants to obtain ongoing release of electronic communications that do not yet exist. Authorities in other states, they said, issued wiretap orders when requesting such disclosures.

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