Facebook, Inc. v. State

• Decision Date: 04 April 2022
• Docket Number: DOCKET NOS. A-3350-20,A-0119-21
• Citation: 471 N.J.Super. 430,273 A.3d 958
• Parties: FACEBOOK, INC., Plaintiff-Respondent, v. STATE of New Jersey, Defendant-Appellant. In re the Application of the State of New Jersey for a Communications Data Warrant Authorizing the Obtaining of the Contents of Records from Facebook, Inc.
• Court: New Jersey Superior Court — Appellate Division

471 N.J.Super. 430

273 A.3d 958

FACEBOOK, INC., Plaintiff-Respondent,

v. STATE of New Jersey, Defendant-Appellant.In re the Application of the State of New Jersey for a Communications Data Warrant Authorizing the Obtaining of the Contents of Records from Facebook, Inc.

DOCKET NOS. A-3350-20

A-0119-21

Superior Court of New Jersey, Appellate Division.

Argued January 31, 2022

Decided April 4, 2022

Sarah C. Hunt, Deputy Attorney General, argued the cause for appellant State of New Jersey (Andrew J. Bruck, Acting Attorney General, attorney; Sarah C. Hunt, of counsel and on the brief).

Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for respondent Facebook Inc. (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, PC, Seth P. Waxman, John K. Roche (Perkins Coie, LLP) of the District of Columbia and Virginia bars, admitted pro hac vice, Mikella M. Hurley (Perkins Coie, LLP) of the District of Columbia and New York bars, admitted pro hac vice, Ronald C. Machen and Catherine M.A. Carroll (Wilmer Cutler Pickering Hale and Dorr LLP) of the District of Columbia bar, and George P. Varghese, (Wilmer Cutler Pickering Hale and Dorr LLP) of the Massachusetts bar admitted pro hac vice, attorneys; Rubin Sinins, Springfield, Seth P. Waxman, Ronald C. Machen, Catherine M.A. Carroll, John K. Roche, Mikella M. Hurley, and George P. Varghese, on the brief).

Before Judges Sabatino, Rothstadt and Mayer.

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

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,¹ 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.

I.Warrants and the Trial Court Proceedings

At the outset, we summarize the proceedings before the two motion judges, one in the Atlantic vicinage (A-3350-20) and the other in Mercer (A-0119-21). According to the State, the Atlantic application for the CDW² established "probable cause for believing that the said Facebook account believed to be used by ["Anthony"³ ] ... and other as yet unidentified individuals, will provide evidence of, tend to show violations of, and identify individuals engaged in" drug distribution crimes, contrary to N.J.S.A. 2C:35-5(a)(1), recruitment to join a street gang, contrary to N.J.S.A. 2C:33-28, gang criminality, contrary to N.J.S.A. 2C:33-29, promotion of organized street crime, contrary to N.J.S.A. 2C:33-30, and conspiracy to commit each of these, contrary to N.J.S.A. 2C:5-2.

Similar to the Atlantic CDW, the State contends the Mercer CDW application demonstrated "probable cause for believing that" "Maurice," the Facebook user, "and other individuals," who are not specified, "are engaging in, and are committing, have committed, and are about to commit" Chapter 35 drug distribution offenses, including N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-10, and a conspiracy to violate both, contrary to N.J.S.A. 2C:5-2. Unlike the Atlantic CDW, the Mercer warrant also stated, "[t]he Captioned Facebook Account has been and continues to be used" by the target of the search "to facilitate the commission of the specified crimes."

Based on the State's applications, which were filed in March 2021 by the Atlantic County Sheriff's Office in Atlantic and a State Trooper in Mercer, separate judges issued two CDWs directed to Facebook. Both CDWs sought substantially the same types of data from Facebook, which included the contents of electronic communications, location data, and basic subscriber information. However, only the contents of stored electronic communications are at issue in this appeal.

The Atlantic CDW directed Facebook to disclose, among other things, the contents of electronic communications from a Facebook account controlled by the user identified as Anthony, from January 1, 2021, through the duration of the order—thirty days after the CDW's issuance. The Mercer CDW directed Facebook to disclose to the State, among other things, "the contents of stored electronic communication" concerning a user identified as Maurice from December 1, 2020, through the duration of the order—thirty days after its issuance. Included in "the contents of stored electronic communications," were images, videos, audio files, posts, comments, histories, and the contents of all private messages in all message folders, including inbox, sent, chat messenger, and trash folders,⁴ dating back to January 1, 2021(with respect to the Atlantic CDW) and December 1, 2020 (as to the CDW from Mercer) "through the duration of th[e] order" with respect to both.

The warrants also provided for "real-time" access to such communications via creation of a "cloned," "ghost," or "active duplicate account" to be linked to an account or electronic mailbox exclusively controlled by the New Jersey State Police or other law enforcement agencies assisting with the investigation. Both warrants further directed the "installation and operation" of duplicate accounts used to obtain access to these communications that "shall begin and terminate as soon as practicable, and continue for a period of 30 days," during which time the "devices [could] be utilized 24 hours a day ... Monday through Sunday."

The Atlantic CDW, but not the Mercer CDW, specified that the "real-time" data so obtained and stored on servers must be "provided to law enforcement officials in approximately 15-minute intervals." In its brief, the State represents that the 15-minute interval procedure had been its practice since at least February 2020, and that its omission from the Mercer CDW was error.

In total, the CDWs compelled the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days' worth of historical communications—seventy-four days in the Atlantic CDW; sixty-three days in Mercer.

Both CDWs ordered Facebook not to disclose the existence of the investigation to the subscribers. While the Mercer CDW's nondisclosure component was to expire in 180 days, the Atlantic CDW's nondisclosure order would continue indefinitely "until further order of th[e] [c]ourt," though terminating when the investigation ends. The Atlantic CDW frames the notice issue as precluding Facebook from providing "notice to anyone involved with the account or any of the data, messages, and content intercepted," whereas the Mercer CDW contains no form of the term "intercept." (Emphasis added).

Facebook partially complied with both CDWs, providing all requested historical electronic communications on the targets' accounts that were stored on its servers as of the date the CDWs issued, as well as non-content communications, such as, among other things, location information, that occurred during the thirty-day period following issuance of the CDWs. What Facebook declined to do, in each case, was provide the contents of any prospective electronic communications, which, again, are the only electronic communications at issue in this appeal.

The Trial Courts' Rulings

Facebook filed a motion to quash in each vicinage. In response, the two judges entered orders quashing the portions of the CDWs with which Facebook had not complied; the Atlantic judge did so on May 6, 2021, and the Mercer judge on June 25, 2021. In each case, the judge partially quashed the CDWs to the extent they compelled disclosure of the contents of prospective communications. The judges found the future disclosures tantamount to electronic surveillance, necessitating a wiretap order, rather than an ordinary search warrant.

With respect to the Atlantic CDW, the motion judge observed that the Fourth Amendment grants every citizen the right "to enjoy privacy in their communications," and framed the search and seizure issue as "whether the State has a right to intrude on that privacy." Because the CDW compelled disclosure of the prospective contents of communications, that authorization should be viewed more "stringently" than customer or subscriber records, and had to "comply with constitutional requirements." As the CDW sought "information that is in the future," the surveillance was "tantamount to eavesdropping" and "an interception," notwithstanding the fifteen-minute delay in the prospective disclosures. The length of the delay did not matter, because "[i]t's in the future," the court held, which meant "there has to be a required showing and a time limit." Because the CDW...