New Jersey police officers sought to “compel Facebook to provide the contents of two users’ accounts [suspected of drug or gang activity] every 15 minutes for 30 days into the future,”[1] with the 15-minute delay being due only to Facebook’s technical limitations. Unlike other law enforcement agencies that made similar requests across the country,[2] New Jersey officers sought this information using only Communications Data Warrants (CDWs), the equivalent of search warrants, rather than using more restrictive wiretap orders, which require a heightened showing beyond probable cause.[3]

The State argued that because of the 15-minute delay involved, it was obtaining “stored communications” and therefore needed only an ordinary search warrant under the relevant federal and state statutes.[4] In addition to the prospective information, the state sought extensive existing information for both users. While “Facebook turned over [the] historical records,” it “did not produce any prospective communications and moved to quash that part of the CDWs.”[5] Both trial judges who considered the matter agreed with Facebook that the State needed wiretap orders to obtain this type of information and quashed the prospective parts of the CDWs,[6] with one noting that the 15-minute increments were “the closest the State can possibly get to real-time interception” and the other noting that “the disclosure of future communications every 15 minutes is ‘tantamount to eavesdropping.’”[7]

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The State appealed. The Appellate Division consolidated the cases and reversed the trial courts, finding that because “the communications the State sought were not ‘in flight’ and had been stored on Facebook’s servers,” even briefly, the federal and state wiretap laws did not apply. Instead, it agreed with the State that the requests were “governed by federal and state statutes relating to stored communications.”[8] Still, the Appellate Division limited the CDWs to 10 days (instead of 30 days) based on the shorter deadline found in the relevant New Jersey state rules for the execution of search warrants.[9] The New Jersey Supreme Court agreed to hear Facebook’s appeal from this decision, and it also agreed to hear the State’s cross-appeal of the 10-day limitation.[10]

Writing for a unanimous court,[11] Chief Justice Stuart Rabner wrote that, “[b]ased on the language and structure of the relevant statutes,” the State’s “request for information from users’ accounts invokes heightened privacy protections,” and that “the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.”[12] He explained that both the United States and New Jersey Constitutions protect against “unreasonable searches and seizures” and require warrants to “be supported by probable cause” and to “describe with particularity ‘the place to be searched’ and the ‘things to be seized.’”[13]

Moreover, the requests to Facebook implicated two sets of laws: 1) the federal and state wiretap acts[14] and 2) the federal and state stored communications acts.[15] Importantly, as the court explained, “[n]either federal nor state law includes enhanced protections for the disclosure of the contents of stored electronic communications,”[16] while enhanced protections are provided for communications sought under the wiretap acts. Those enhanced protections include the availability of wiretap interceptions only for “investigations of specified serious offenses.” Furthermore, the government must show other “investigative procedures . . . have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.” There must also be a description of procedures that will be used to minimize the interception of communications not subject to the order and periodic reports to the judiciary. Additionally, wiretap orders under state law are time-limited “to [be] only as long as necessary to achieve their objective or a maximum of 20 days . . . [with] [e]xtensions or renewals . . . for two additional periods of up to 10 days.”[17]

The State argued that the stored communications acts and the regular procedures and rules for obtaining search warrants governed because the communications sought were not “in flight,” and that even future communications can be sought under these procedures so long as “they are in electronic storage at the moment law enforcement obtains them.”[18] But the court rejected that contention, finding instead that “the language and structure of the federal and state statutes do not support the use of a warrant to access the contents of prospective electronic communications.”[19]

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The court found that even though some federal courts interpreting the federal wiretap act have adopted a strict contemporaneity rule—meaning the communications must be intercepted in real time, or something close to it—nothing in the federal or state “wiretap statute contains a contemporaneity requirement.”[20] Moreover, the court said that the “federal cases that adopted a strict contemporaneity rule involved purely historical communication.”[21] And it found that a “strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address that or other situations technology presents today. Nor would such a rule be consistent with the underlying purposes of the wiretap statutes—to protect individual privacy.”[22] The court found that “[b]ased on the language, structure, and intent of the State Wiretap Act, . . . it applies to the near real-time acquisition of prospective electronic communications” and that “attempts to acquire electronic communications every 15 minutes, for 30 days into the future, are not covered by New Jersey’s equivalent of the Stored Communications Act.”[23]

The court went further, saying that while it “strive[s] to avoid . . . constitutional questions unless required to” consider them, the “wiretap statutes themselves are infused with constitutional considerations” so that, under New Jersey’s state constitution, “a warrant based on probable cause is not enough to monitor prospective electronic communications in nearly real time, on an ongoing basis . . . .”[24]

[1]Facebook, Inc. v. State, 296 A.3d 492, 498 (N.J. 2023).