In order for law enforcement officials to obtain prospective electronic communications from Facebook users (after providing probable cause and demonstrating that they wouldn’t be able to obtain the information through other means), a communications data warrant (CDW) would not be sufficient and they would need to obtain a wiretap order.
In keeping with the evolution of technology and the court system, a recent New Jersey Supreme Court opinion reversed an Appellate court decision concerning a case that involved a criminal investigation through Facebook.
For time and reading sake, we are going to give a brief synopsis of the memorandum (because it is 48 pages long, but we will link it at the bottom in case you want to read all of it). In 2021, NJ law enforcement officials were investigating two different criminal cases where there was suspicion of ongoing gang and drug activity. According to law enforcement, the Facebook accounts of two individuals were alleged to have been used in the “engaging, committing, having committed and about to commit” drug distribution offenses. Law enforcement officials filed sworn affidavits requesting the issuance of a communication data warrant (CDW) for electronically stored information of the Facebook users’ accounts for a specific period of time, but also requested that “real-time” data be obtained every 15 minutes (which they later termed to be “prospective electronic communications”). Facebook complied in part with the warrants, but declined to provide prospective electronic communications and filed a motion to quash that specific part of the CDW. The judges granted Facebook’s motion to quash and stated that for law enforcement officials to obtain prospective electronic communications, they would need to obtain a wiretap order. The State appealed and the Appellate Court concluded that the State could obtain prospective electronic communications through a CDW. Facebook appealed and the case then went before the New Jersey Supreme Court.
To be clear, NJ case law states that “A wiretap order permits the interception by law enforcement of a communication contemporaneous with the transmission” . . . “[a] CDW is directed to acquisition of communications in post-transmission electronic storage kept by an electronic communication service [(ECS)] or remote computing service [(RCS)] for reasons of backup protections for the communication.” “By definition, an electronic communication in storage cannot be ‘intercepted’ because it is not contemporaneous with the transmission.” State v. Finesmith, 408 N.J. Super. 206, 211-12 (App. Div. 2009).
The NJ Supreme Court cited to the Fourth Amendment protections granted under the U.S. Constitution protecting individuals from intrusions in their private electronic communications. They also highlighted the Electronic Communications Privacy Act of 1986 enacted by Congress; the New Jersey Wiretapping Act; and a lot of other statutes, legislation and case law (that is kind of hard to follow) to come up with their decision that overturned the Appellate court’s ruling, affirming the decision of the lower court and stating that in order for law enforcement officials to obtain prospective electronic communications from Facebook users (after providing probable cause and demonstrating that they wouldn’t be able to obtain the information through other means), a CDW would not be sufficient and they would need to obtain a wiretap order.
https://www.njcourts.gov/system/files/court-opinions/2022/a3350-20a0119-21.pdf
