A ruling from the Supreme Court of New Jersey this week confirmed that investigators seeking prospective electronic communications must first obtain a wiretap order, and that a Communications Data Warrant was not sufficient.
In the case, Facebook, Inc. v. State, the Court considers whether Facebook can be compelled to provide the contents of two users’ accounts every 15 minutes for 30 days into the future based only on probable cause, the ordinary standard for a search warrant, or whether the State must instead satisfy certain requirements and apply for a wiretap order, which requires an enhanced showing, one beyond probable cause.
The Court held that the nearly contemporaneous acquisition of electronic communications sought by the State was the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection. As such, despite the 15-minute delay in obtaining communications, investigators would be required to meet the heightened standards necessary and obtain a wiretap order.
The Court noted that with this ruling New Jersey now appears to align with practices elsewhere in the country.
This ruling should be reviewed with your municipal attorney and chief law enforcement officer for more information on how it may impact your municipality.
Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481, x137.