Privacy Ruling: NJ Supreme Court Limits Law Enforcement’s Access to Facebook Communications in Real Time.

Facebook, Inc. v. State of New Jersey

Docket Nos. (A-61-21; A-7-22) (087054)

Decided June 29, 2023

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent published opinion, the Supreme Court of New Jersey decided whether law enforcement officials can obtain the contents of electronic communications from a Facebook account prospectively every 15 minutes for 30 days into the future based solely on a showing of probable cause. Probable cause is the ordinary standard for a search warrant. If the State were required to apply for a wiretap order, an enhanced showing beyond probable cause would be needed.

In the instant case, the State applied for a communications data warrant (CDW) to obtain prospective communications from two Facebook users’ accounts, seeking to compel Facebook to provide the contents of the accounts every 15 minutes for 30 days into the future. The 15-minute delay was the result of technical limitations in Facebook’s system, as the company could only provide the contents of users’ accounts after a 15-minute delay. Because of the 15-minute delay, the State argued that it was seeking “stored communications” and therefore only needed to obtain a CDW based on probable cause, rather than a wiretap order that required a showing beyond probable cause. Facebook argued that neither federal nor state statutory law authorizes the use of a search warrant to compel disclosure of the contents of prospective communications, and maintains that the challenged searches are governed by the enhanced privacy protections of the wiretap acts.

The trial court ruled against the State’s request for prospective information based on a CDW, the equivalent of a search warrant which is 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. The court articulated that the wiretap statute applied to the contemporaneous interception of electronic communications, not efforts to access communications in storage. Facebook then filed a motion for reconsideration which was denied. The Supreme Court of New Jersey subsequently granted certiorari for Facebook’s motion for leave to appeal and the State’s motion for leave to cross-appeal the 10-day limitation.

Following the Appellate Court’s decision, Facebook contended that the Appellate Division’s decision disregards the Federal and State Constitutions, which bar multiple intrusions based on a single warrant and that the CDWs are not anticipatory warrants and cannot be justified under the reasonable continuation doctrine. The State contended that the judgment of the Appellate Division should be upheld except for the 10-day limitation imposed on the CDWs. It argued that since it only sought to store electronic communications and not contemporaneous interceptions, the wiretap acts do not apply. The State also maintains that no language in the relevant statutes about stored communications distinguishes between historical and prospective communications.

After considering the arguments of the parties, the Supreme Court of New Jersey reversed the judgment of the Appellate Division and quashed the parts of the CDWs that direct Facebook to provide prospective electronic communications. The Court held that based on the language and structure of the relevant statutes, the State’s request for information from users’ accounts invokes heightened privacy protections. The Court opined that the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection because gaining access to private communications in real time is considerably more intrusive than a typical search. Thus, New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution.

At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront, so please call us to discuss your 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.




Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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