Facebook Prevails

The New Jersey Supreme Court ruled in favor of Facebook in a law enforcement action

In this case, law enforcement officers seek to compel Facebook to provide the contents of two users’ accounts every 15 minutes for 30 days into the future. The 15-minute delay is because of technical limitations; it is as fast as Facebook can provide the information.

To conduct a search, the State ordinarily must demonstrate there is probable cause to believe evidence of a crime will be found at a particular place and must obtain a warrant. Gaining access to private communications in real time, however, is considerably more intrusive than a typical search. In those instances, the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing — one beyond probable cause.

That approach attempts to balance law enforcement’s legitimate need to investigate crime and the reasonable privacy rights that individuals possess. Here, even though the State seeks extensive information from private user accounts that does not yet exist, in as close to real time as possible, it claims it only needs to show probable cause. For support, the State presents arguments based on statutes that govern stored communications and wiretap interceptions. In short, the State argues that because of the brief 15-minute delay involved, it is obtaining “stored communications” rather than intercepting live ones, so fewer safeguards apply.

We do not agree. And nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order. Based on the language and structure of the relevant
statutes, we find that the State’s request for information from users’ accounts invokes heightened privacy protections. We also find that the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.

Two trial courts quashed the State’s request for prospective information based on a Communications Data Warrant (CDW), the equivalent of a search warrant. The Appellate Division, however, concluded that a showing of probable cause under a CDW was sufficient and ordered Facebook to turn over future electronic communications. We now reverse that judgment and hold that the protections of New Jersey’s wiretap act apply in this case in order to safeguard individual privacy rights under the relevant statutes and the State Constitution.

(Mike Frisch)