NJ: Facebook searches require SWs, not intercept orders

A communication data warrant requires probable cause. Facebook’s data in hand is not “intercepted” for wiretapping purposes. Facebook, Inc. v. State, 2022 N.J. Super. LEXIS 40 (Apr. 4, 2022):

In these two appeals, which we calendared back to back and have consolidated for the purpose of writing one opinion, we are asked to determine as a matter of first impression whether communication data warrants (CDWs) or, conversely, wiretap orders had to be served on Facebook, Inc. n/k/a Meta Platforms, Inc. (Facebook) in order for law enforcement officers to secure prospective electronically stored information from two of Facebook’s users’ accounts as part of separate ongoing criminal investigations. For the reasons stated in this opinion, we conclude that only the CDWs and not wiretap orders were required, where, as here, the data sought was from information that would be stored by Facebook as compared to simultaneous transmission of information through interception. However, we also conclude the CDWs relied upon in these two matters were too lengthy in duration under our state’s warrant procedures, and therefore require modification, as discussed herein.

The appeals arise from orders entered by two Law Division judges who quashed, in part, separate CDWs in these unrelated matters in response to Facebook’s motions. Both judges determined that wiretap orders, rather than CDWs, were required to compel Facebook to turn over information it would collect and store prospectively from two of its users’ accounts, without any notice to the individuals who are subjects of the investigations. While we conclude that such orders were not required, we affirm for other reasons, with a significant temporal modification explained herein. We do so with the understanding that our determination is without prejudice to the Facebook account users’ privacy claims should they be asserted in the future.