Information On Social Media, Even Contained In “Private” Messenger Applications, Is Not Private Information

Facebook v. State of New Jersey

Appellate Docket No.: A-3350-20

A-119-21

Decided April 4, 2022

Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark

In a recent published decision, the Appellate Division reviewed whether communication data warrants (CDW) can require the disclosure of prospective communications, or whether prospective communications require a wiretap order.

In Facebook v. State of New Jersey, there were two CDWs at issue, one from Atlantic County and one from Mercer.  The Atlantic application for the CDW established “probable cause for believing that the said Facebook account believed to be used by [“Anthony” 3 ] . . . and other as yet unidentified individuals, will provide evidence of, tend to show violations of, and identify individuals engaged in” drug distribution crimes, contrary to N.J.S.A. 2C:35- 5(a)(1), recruitment to join a street gang, contrary to N.J.S.A. 2C:33-28, gang criminality, contrary to N.J.S.A. 2C:33-29, promotion of organized street crime, contrary to N.J.S.A. 2C:33-30, and conspiracy to commit each of these, contrary to N.J.S.A. 2C:5-2.

Similar to the Atlantic CDW, the State contends the Mercer CDW application demonstrated “probable cause for believing that” “Maurice,” the Facebook user, “and other individuals,” who are not specified, “are engaging in, and are committing, have committed, and are about to commit” Chapter 35 drug distribution offenses, including N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-10, and a conspiracy to violate both, contrary to N.J.S.A. 2C:5-2. Unlike the Atlantic CDW, the Mercer warrant also stated, “[t]he Captioned Facebook Account has been and continues to be used” by the target of the search “to facilitate the commission of the specified crimes.”

Both CDWs sought substantially the same 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, 4 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 the CDWs, providing past communications presently in its storage, but declined to produce prospective communications, arguing the State needed a wiretap order for the disclosure of prospective communications.  The trial courts partially quashed the CDWs in that they sought prospective communications.  The State appealed.

The Appellate Division, after a heavy review of the statutory and legal history, found that the CDWs were valid, even for the request for prospective communications, because it was still not a request for simultaneous disclosure of the sought after communications. Instead, the State only sought the disclosure of the communications contained in Facebook’s database. With that ruling, the Appellate Division put a 10 day limit on the disclosure of prospective communications, because that was the time period required to comply with the CDW, protecting individual’s right against indefinite disclosure of prospective communications.

This case is important to understand the extent to which the State, the prosecutors, detectives, and police use information to prove their case against a defendant. Information on social media, even contained in “private” messenger applications, is not private information. This information is stored on servers and readily accessible to the prosecution upon the issuance of a CDW. Now, the State has the ability to request prospective communications — communications that have not even occurred yet – with a simple issuance of a CDW.

If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.