The Supreme Court of New Jersey recently agreed to hear appeals from both sides in a closely watched case involving law enforcement access to social media accounts. The specific issue in Facebook, Inc. v. State of New Jersey is whether police can obtain prospective electronic communications from a Facebook account via a communications data warrant (CDWs), or whether they must obtain a wiretap order.
Facts of the Case
The appeal involves two consolidated cases involving 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 th[e] 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.
Appellate Division’s Decision
The Appellate Division reversed. 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 communication[s]’ at issue ‘in flight,’ before they ‘c[a]me[] 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.”
Issues Before the NJ Supreme Court
The Supreme Court previously granted Facebook leave to appeal on July 11, 2022. In granting certification, the court agreed to decide whether the State must obtain prospective electronic communications from a Facebook account via a communications data warrant (CDW), or whether a wiretap order required.
On September 13, 2022, the New Jersey Supreme Court also granted the State’s motion for leave to appeal, 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?” Oral arguments in the case have not yet been scheduled.