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July 03, 2023

Cops need a wiretap to eavesdrop on your Facebook posts, N.J. Supreme Court says

The unanimous ruling is a win for privacy advocates and Facebook itself

Social Media Police
Facebook warrants nj Rodolfo Buhrer/Fotoarena/Sipa USA

The New Jersey Supreme Court ruling centers around two cases where police wanted Facebook to disclose the contents of social media postings within 15 minutes of their creation.

The New Jersey Supreme Court unanimously ruled recently that law enforcement must obtain a wiretap to force near-simultaneous disclosure of private social media postings, handing Facebook a win in a case closely watched by civil liberties advocates.

In a reversal of lower court decisions, the high court ruled against authorities who argued a warrant is sufficient to obtain nearly real-time release of such communications. That argument is unsupported by federal or state statute, the court said, adding that allowing such releases would effectively neuter New Jersey's wiretap law.

"It's great to see the New Jersey Supreme Court make clear that whenever the government seeks ongoing access to our private conversations, it must meet the heightened protections required under state law and the federal and state constitutions," said Jennifer Granick, surveillance and cybersecurity counsel with the American Civil Liberties Union's speech, privacy, and technology project.

In separate cases focused on two men under investigation for drug offenses, authorities obtained a communications data warrant to force Facebook to disclose social media postings — within 15 minutes of their creation — made by the pair over a 30-day span.

The state contended such releases, which Facebook said were as close to real-time as technology allows, could be made without meeting the higher bar for a wiretap order because by the time Facebook provided them, they would already have been transmitted and electronically stored.

But Thursday's decision says allowing such releases would make the state's wiretap statute obsolete because "law enforcement today would never need to apply for a wiretap order to obtain future electronic communications from Facebook users' accounts on an ongoing basis."

Authorities must show probable cause to obtain a warrant. To obtain a wiretap order, they must also demonstrate that other investigatory methods would fail — because they are too dangerous, for example — according to criminal defense lawyer Brian Neary. Neary argued on behalf of the New Jersey State Bar Association, which joined the case as a friend of the court.

Google and Microsoft, which joined the case as amici curiae, told the court New Jersey is the only state where police have sought to use warrants to obtain ongoing release of electronic communications that do not yet exist. Authorities in other states, they said, issued wiretap orders when requesting such disclosures.

The ACLU, the New Jersey Office of the Public Defender, the New Jersey State Bar Association, and digital privacy groups in friend-of-the-court briefs similarly charged that allowing such releases would undercut privacy protections.

"Legislation may not be quick enough to match the light speed of technological advances, but when privacy is threatened by technology's speed, the constitution will be the north star for courts to protect individuals' rights against unlawful government intrusion," Neary said.

The Supreme Court further found that releases under a communications data warrant would breach other privacy protections, like those guarding communications between spouses or between a lawyer and their client.

Spokespeople for the attorney general declined to comment on the ruling.

Trial courts had blocked the release of the social media posts in both cases, finding the continuous release would be "tantamount to eavesdropping" and required the greater showing of probable cause called for under the state's wiretap statute.

In a reversal, appellate panels ruled those authorities could obtain the posts because they had already been transmitted and were being stored, but they slashed the duration of the intercepts to 10 days, the same time limit imposed on communications warrants.

The Supreme Court says both timelines are inappropriate, noting wiretaps in New Jersey can last for a maximum of 20 days before law enforcement is required to seek 10-day extensions.

"The Court rejected the state's attempt to evade these protections through word games and clever interpretations of state law. Powerful tech companies should stand up in court for their users' privacy rights, just as Facebook did here," Granick said.

New Jersey Monitor is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence McDonald for questions: Follow New Jersey Monitor on Facebook and Twitter.