The state had a warrant for updates every 15 minutes of two Facebook accounts. That was virtually a wiretap, and the state wiretapping law applies. Facebook, Inc. v. State, 2023 N.J. LEXIS 700 (June 29, 2023). From the syllabus:
Based on the language and structure of the relevant statutes, the State’s request for information from users’ accounts invokes heightened privacy protections. The nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection. New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution.
1 The protections guaranteed by the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution extend to government surveillance of private conversations. The Supreme Court’s landmark opinions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), outlined principles to protect individual privacy rights in the area of electronic surveillance. In response to those cases, Congress enacted the Federal Wiretap Act in 1968. 18 U.S.C. §§ 2510 to 2520. New Jersey then enacted the State Wiretap Act, modeled after federal law. Like its federal counterpart, the State Act defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.” N.J.S.A. 2A:156A-2(c); 18 U.S.C. § 2510(4). The law includes numerous protections, and courts strictly construe the State Wiretap Act to protect individual privacy rights. State v. Ates, 217 N.J. 253, 268 (2014). (pp. 12-17)
2 Stored communications are governed by a different group of statutory provisions. In 1986, Congress enacted the Electronic Communications and Privacy Act (ECPA) to update privacy protections in light of dramatic changes in technology. The ECPA added “electronic” communications to the definition of “intercept” in the Federal Wiretap Act. It also created what is known as the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 to 2713, which focuses on electronic information in storage. New Jersey enacted similar legislation in 1993. The federal and the state stored communications statutes define “electronic communications” and “electronic storage” in nearly identical terms, but they differ in the way they discuss access to stored electronic communications maintained by service providers. Federal law authorizes government entities to require disclosure of a communication “that is in electronic storage” for 180 days or less pursuant to a warrant, or that “has been in electronic storage” for more than 180 days pursuant to a warrant or other specified means. 18 U.S.C. § 2703(a) (emphases added). The parallel New Jersey statute, by contrast, makes no mention of “electronic storage.” See N.J.S.A. 2A:156A-29(a). Neither federal nor state law includes enhanced protections for the disclosure of the contents of stored electronic communications. (pp. 18-21)
3 The Court first considers whether the electronic communications the State seeks are covered by New Jersey’s equivalent to the SCA. Neither the federal nor the state version of the SCA expressly authorizes disclosure of future communications. See 18 U.S.C. § 2703(a); N.J.S.A. 2A:156A-29(a). The commonsense meaning of the words in the federal SCA — “is in electronic storage” and “has been in electronic storage” — do not include content or data that “will be” in storage at a later point in time. The Court explains why the Federal Dictionary Act does not apply. Although some provisions of the ECPA apply to prospective surveillance activities, the SCA, which governs “stored” communications, does not. And the State’s argument fares no better under the State Wiretap Act. The New Jersey Legislature did not incorporate language about electronic storage in N.J.S.A. 2A:156A-29(a). In addition, reflecting the structure of the ECPA, the state code addresses wiretap interceptions at N.J.S.A. 2A:156A-1 to -26 and stored communications at N.J.S.A. 2A:156A-27 to -34. The forward-looking aspects of the act appear in the wiretap sections only, not in the sections about stored communications. The federal and state statutes do not support the use of a warrant to access the contents of prospective electronic communications. (pp. 22-27)
4 The Court next considers whether the requests for information in this appeal are subject to the enhanced privacy protections of the wiretap acts. The State argues the wiretap acts do not apply because the stored messages it seeks will not be intercepted contemporaneously, in real time. Although multiple federal circuits have held that an “intercept” must occur contemporaneously with transmission, the word “contemporaneous” does not appear in the ECPA or its state counterpart. Those rulings stem instead from a Fifth Circuit decision that preceded the ECPA and held that the term “intercept” in the 1968 Federal Wiretap Act required contemporaneity. And, significantly, those federal rulings involved purely historical communications, such as cassette tapes, prior postings on a password-protected website, and stored emails. In none of those cases did anyone access communications either while they were in flight or nearly contemporaneously to their transmission. Some Circuit Courts have raised questions about the contemporaneity requirement. (pp. 27-32)
5 A strict contemporaneity rule adopted before the advent of the Internet would not be a good fit to address the situations technology presents today. Nor would it be consistent with the underlying purpose of the wiretap statutes — to protect individual privacy. From a practical standpoint, if a strict contemporaneity approach applied, law enforcement would never need to apply for a wiretap order to obtain future electronic communications on an ongoing basis. It would be only natural to apply instead for a CDW, which is easier to obtain but has fewer safeguards for privacy. And in time, as technology improves, today’s unavoidable 15-minute delay may well get shorter. The logical extension of the State’s position is that law enforcement could avoid the requirements of the wiretap acts by simply asking Facebook to wait a few minutes, while data is stored, before providing electronic communications on an ongoing, future basis. That cannot be right given the underlying aim of the statutes. Based on the language, structure, and intent of the State Wiretap Act, it applies to the near real-time acquisition of prospective electronic communications. Attempts to acquire electronic communications every 15 minutes, for 30 days into the future, are not covered by New Jersey’s equivalent of the SCA. They are instead subject to the requirements of the State Wiretap Act. (pp. 32-33)
6 The wiretap statutes are infused with constitutional considerations, as identified in Berger and Katz. The Constitution sets the benchmark for a reasonable search: the use of a warrant based on probable cause. When a lesser expectation of privacy is involved, or when a search involves a minimal intrusion on an individual’s privacy, fewer protections are required. The same is true in reverse. More intrusive searches call for enhanced protections. Here, the privacy interests at stake and the level of intrusion are substantial. There are no limits to the content the State seeks, yet the CDW orders have no minimization requirements. In essence, the State seeks the functional equivalent of a wiretap — but without the added safeguards the wiretap acts require. If it were possible to obtain the contents of future electronic communications from Facebook in real time, the parties agree the wiretap statutes and protections would apply. The same privacy interests exist here. A warrant based on probable cause is not enough to monitor prospective electronic communications in nearly real time, on an ongoing basis. The principles set forth in Berger and its progeny require the State to make a heightened showing and adhere to the additional safeguards provided in the wiretap acts. The Court’s conclusion is grounded in the privacy protections the State Constitution guarantees. (pp. 34-39)
7 Reviewing the required enhanced protections and time limits established by the State Wiretap Act, the Court notes that the 10-day time limit set forth in Rule 3:5-5 is not the right benchmark. The Rule does not apply here. Nor does it resolve any of the statutory or constitutional concerns the CDWs present. Facebook contends the CDWs are flawed because they represent “the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause.” The heightened protections of the Wiretap Act address that concern. The Court affirms at the same time the principles in State v. Earls, 214 N.J. 564 (2013). (pp. 39-40)
8 Turning to additional arguments raised by the State, the Court explains why the CDWs here are not anticipatory warrants and why the reasonable continuation doctrine does not apply. (pp. 40-43)
9 The Court’s ruling appears to align with practices elsewhere. The arguments presented do not identify any jurisdictions, other than New Jersey, which have sought prospective electronic communications based on a search warrant. (p. 43)
