In Facebook v. State, (A-61-21; A-7-22/087054) (June 29, 2023), the Supreme Court of New Jersey held that Facebook can’t be compelled to provide the prospective communications of two users based only on probable cause. Citing the heightened privacy protections involved, the court unanimously held that the state’s wiretap act applies.
Facts of Facebook v. State
The case specifically considered whether Facebook can be compelled to provide the contents of two users’ accounts every 15 minutes for 30 days into the future via a traditional search warrant. As the New Jersey Supreme Court explained in its opinion, the 15-minute delay is because of technical limitations; it is as fast as Facebook can provide the information.
Even though it seeks extensive information from private user accounts that does not yet exist, in as close to real time as possible, the State argued that, in light of the 15-minute delay, it is obtaining “stored communications,” which do not require a wiretap order. In the two matters under review, trial courts quashed the State’s request for prospective information based on a Communications Data Warrant (CDW), which is the equivalent of a search warrant and can be issued on a showing of probable cause.
The Appellate Division consolidated the cases and held that the State could obtain prospective electronic communications with a CDW, reasoning that the wiretap statute applied to the contemporaneous interception of electronic communications, not efforts to access communications in storage. To ensure compliance “with the federal and state constitutions and [New Jersey’s] warrant procedures,” however, the Appellate Division imposed a 10-day limit on the duration of the CDWs, importing the shorter deadline from Rule 3:5-5(a), which sets a time limit for the execution of search warrants.
NJ Supreme Court’s Decision in Facebook v. State
The Supreme Court of New Jersey reversed. It held that the protections of New Jersey’s wiretap act applied in order to “safeguard individual privacy rights under the relevant statutes and the State Constitution.”
“To conduct a search, the State ordinarily must demonstrate there is probable cause to believe evidence of a crime will be found at a particular place and must obtain a warrant,” Chief Justice Stuart Rabner wrote on behalf of the unanimous court. “Gaining access to private communications in real time, however, is considerably more intrusive than a typical search. In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing — one beyond probable cause.”
In reaching its decision, the New Jersey Supreme Court rejected State’s argument that the near real-time acquisition of prospective electronic communications is subject to New Jersey’s equivalent of the Stored Communications Act (SCA), which applies to electronic data in storage. “Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order,” Rabner wrote.
Instead, the court concluded that such requests are subject to the enhanced privacy protections of the wiretap acts. “We also find that the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection,” Rabner wrote. “In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing—one beyond probable cause,” Rabner explained. “That approach attempts to balance law enforcement’s legitimate need to investigate crime and the reasonable privacy rights that individuals possess.”