Facebook, Inc. v. State

Docket NumberA-61-21,A-7-22,087054
Decision Date29 June 2023
PartiesFacebook, Inc., Plaintiff-Appellant/Cross-Respondent, v. State of New Jersey, Defendant-Respondent/Cross-Appellant
CourtNew Jersey Supreme Court


Facebook, Inc., Plaintiff-Appellant/Cross-Respondent,
State of New Jersey, Defendant-Respondent/Cross-Appellant

Nos. A-61-21, A-7-22, 087054

Supreme Court of New Jersey

June 29, 2023

Argued March 13, 2023

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.

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 471 N.J.Super. 430 (App. Div. 2022).

Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr) of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant/cross-respondent Facebook, Inc. (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom &Sinins, attorneys; Rubin Sinins, Seth P. Waxman, Ronald C. Machen (Wilmer Cutler Pickering Hale and Dorr) of the District of Columbia bar, admitted pro hac vice, Catherine M.A. Carroll (Wilmer Cutler Pickering Hale and Dorr) of the District of Columbia and


Virginia bars, admitted pro hac vice, John K. Roche (Perkins Coie) of the District of Columbia, Virginia, and Maryland bars, admitted pro hac vice, Mikella M. Hurley (Perkins Coie) of the District of Columbia and New York bars, admitted pro hac vice, and George P. Varghese (Wilmer Cutler Pickering Hale and Dorr) of the Massachusetts and Pennsylvania bars, admitted pro hac vice, on the briefs).

Sarah C. Hunt, Deputy Attorney General, argued the cause for respondent/cross-appellant State of New Jersey (Matthew J. Platkin, Attorney General, attorney; Sarah C. Hunt, of counsel and on the briefs, and Lila B. Leonard, Deputy Attorney General, on the briefs).

Jennifer Stisa Granick (American Civil Liberties Union) of the California bar, admitted pro hac vice, argued the cause for amici curiae American Civil Liberties Union and American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, and American Civil Liberties Union Foundation, attorneys; Alexander Shalom, Jeanne LoCicero, and Jennifer Stisa Granick, on the brief).

Erez Liebermann argued the cause for amici curiae Microsoft Corporation and Google, LLC (Debevoise &Plimpton and Herrick Feinstein, attorneys; Erez Liebermann, Michelle M. Sekowski, and James Pastore (Debevoise &Plimpton) of the New York bar, admitted pro hac vice, on the brief).

Brian J. Neary argued the cause for amicus curiae New Jersey State Bar Association (Jeralyn L. Lawrence, President, New Jersey State Bar Association, attorneys; Jeralyn L. Lawrence, of counsel, and Brian J. Neary, Robert B. Hille, Holly A. Maynard, James H. Maynard, and Matheu D. Nunn, on the brief). Peter T. Blum, Assistant Deputy Public Defender, submitted a brief on behalf of amicus curiae Public


Defender of New Jersey (Joseph E. Krakora, Public Defender, attorney; Peter T. Blum, of counsel and on the brief).

Geoffrey S. Brounell submitted a brief on behalf of amici curiae Center for Democracy &Technology, Electronic Privacy Information Center, and Electronic Frontier Foundation (Davis Wright Tremaine, attorneys; Geoffrey S. Brounell, David M. Gossett, of the District of Columbia and Illinois bars, admitted pro hac vice, and MaryAnn T. Almeida, of the District of Columbia and Washington bars, admitted pro hac vice, on the brief).



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.


A CDW is "the equivalent of a search warrant." State v. Lunsford, 226 N.J. 129, 133 (2016). Like a standard search warrant, a CDW can be issued based on a showing of probable cause. State v. Finesmith (Finesmith II), 408 N.J.Super. 206, 212 (App. Div. 2009). It "is not subject to the more restrictive procedures and enhanced protections of the Wiretap Act." Ibid.

In March 2021, the New Jersey State Police applied for a CDW to obtain electronic information from the Facebook[1] account of "Maurice" -- a pseudonym for the account holder. Maurice was under investigation for various drug-related offenses. A trial court judge in the Mercer Vicinage granted the CDW application on March 5, 2021.

In an unrelated case the same month, the Atlantic County Sheriff's Office applied for a CDW for information from another Facebook user's


account. "Anthony," another pseudonym, was under investigation for gang-and drug-related offenses. A judge in the Atlantic Vicinage granted the CDW on March 16, 2021.

Using slightly different wording, the CDWs sought, among other things, the names, addresses, phone numbers, and email addresses associated with the accounts, as well as the contents of "stored electronic communications." The latter category included "real time access to email with attachments, whether opened or unopened"; "private messaging content"; and "real time access to media . . . uploaded to the account[s]," including images, videos, audio files, and "the contents of private messages in all message folders." The Atlantic CDW also specified Messenger chats; the Mercer CDW specified "posts, comments, [and] messages."

Although both CDWs sought "real time" access to data, the Atlantic CDW noted that "[a]ny 'real time' data obtained from Facebook Inc. is stored on the respective servers and then provided to law enforcement officials in approximately 15 minute intervals."

The CDWs ordered Facebook not to reveal the existence of the investigation for 180 days in the Mercer order, and until further order of the court in the Atlantic order.


The warrants directed Facebook to disclose the contents of both historical and future communications. Law enforcement sought all communications dating back to December 1, 2020 in the Mercer matter and to January 1, 2021 in the Atlantic matter. Facebook turned over those historical records, and they are not part of this appeal.

The CDWs also required Facebook to provide the contents of all future communications for the next 30 days in "real time" -- that is, every 15 minutes. Facebook did not produce any prospective communications and moved to quash that part of the CDWs.

Both trial court judges granted Facebook's motion. The trial court in the Mercer matter observed that ongoing disclosures "in 15-minute increments . . . is the closest that the State can possibly get to real-time interception." The court rejected a narrow construction of the term "interception" in the wiretap statute as "being limited solely to . . . instantaneous transmission." The court also noted that the "prolonged period of intrusion on an individual's privacy" for 30 days "raises legitimate concerns."

The trial court in the Atlantic matter underscored "the right of every citizen to enjoy privacy in their communications." The court observed that the disclosure of future communications every 15 minutes is "tantamount to eavesdropping." The "series of intrusions," the court concluded, needs "to be


authorized not just by a search warrant with probable cause, but with a wiretap warrant which has heightened protections."

The Appellate Division granted the State's motions for leave to appeal and consolidated the two cases. The appellate court held that the State could obtain prospective electronic communications with a CDW but only for a 10-day period. Facebook, Inc. v. State, 471 N.J.Super. 430, 459, 465 (App. Div. 2022).

The Appellate Division reasoned that the wiretap statute applied to the contemporaneous interception of electronic communications, not efforts to access communications in storage. Id. at 455-56. Because the communications the State sought were...

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