"Every circuit court to have considered the matter has held that an 'intercept' under the [Federal Wiretap Act] must occur contemporaneously with transmission."
How later courts described this case
- "Every circuit court to have considered the matter has held that an 'intercept' under the [Federal Wiretap Act] must occur contemporaneously with transmission."
- where the Court considered a series of continuous "24/7" intrusions through a tracking system and found that a warrant, an emergency, or some other warrant exception would all be sufficient to alleviate any privacy concerns associated with such ongoing searches and seizures
- upholding a warranted seizure even though items were not at specified location until after warrant issued
- where woman discovered on boyfriend's Facebook account "a recording of a conversation that had already taken place," she "did not intercept a communication in transit," but "accessed a communication in storage," and therefore did not violate the Federal Wiretap Act
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3350-20
A-0119-21
FACEBOOK, INC.,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
April 4, 2022
v.
APPELLATE DIVISION
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.
________________________________
Argued January 31, 2022 – Decided April 4, 2022
Before Judges Sabatino, Rothstadt and Mayer.
On appeal from the interlocutory orders of the Superior
Court of New Jersey, Law Division, Atlantic County,
Warrant No. 1527-CDW-21 and Mercer County,
Warrant No. 1311-CDW-21.
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, Seth P. Waxman,
Ronald C. Machen, Catherine M.A. Carroll, John K.
Roche, Mikella M. Hurley, and George P. Varghese, on
the brief).
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
A- 3350-20
2
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.
1
"[B]ecause an appeal is taken from a trial court's ruling rather than reasons for
the ruling, [we] may rely on grounds other than those upon which the trial court
relied" when, as here, that ruling has been challenged. State v. Adubato, 420
N.J. Super. 167, 176 (App. Div. 2011).
A- 3350-20
3
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 CDW 2
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,
2
The sworn affidavits submitted in support of the CDWs are not in the record.
3
We refer to the account holders by pseudonyms to protect their privacy and to
maintain the confidentiality of the investigation. See R. 1:38-3(c)(10) and 3:5-
4. The account holders are not parties in these cases.
A- 3350-20
4
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
A- 3350-20
5
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."
4
The Atlantic CDW, but not Mercer's, also sought "stories," "profiles," and
"billing records." The CDW described "stories" as "temporary videos that users
post that can be accessed by clicking on the user's profile photograph." A
"profile" ordinarily contains the same types of data already captured by the
definition of stored electronic communications, discussed infra. See Oracle
Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1105 (N.D. Cal. 2016)
(discussing the data contained within typical Facebook profile).
A- 3350-20
6
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
A- 3350-20
7
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
A- 3350-20
8
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 compelled "a series of intrusions" the State needed to
meet "the heightened protections" required under the federal and state wiretap
acts. Accordingly, the Atlantic judge partially granted the motion to quash to
the extent it compelled disclosures of prospective communications.
Similarly, the Mercer motion judge held at the outset that "[e]lectronic
surveillance constitutes a search fully protected by the safeguards of the Fourth
Amendment." The judge declined to construe the term "intercept" as "limited
solely to . . . instantaneous transmission," opting instead to apply the term to the
"ongoing prospective acquisition of content of the user's electronic
communications." The judge explained that the CDW sought to obtain
electronic communications "in real[-]time," notwithstanding the fifteen-minute
delay, which, in the judge's view, was "an inherent part of the transmission
A- 3350-20
9
process," based on Facebook's representation "that their systems [were]
incapable of providing perfectly simultaneous real[-]time access."
Relying on the Seventh Circuit's decision in United States v.
Szymuszkiewicz, 622 F.3d 701, 705-06 (7th Cir. 2010), and the First Circuit's
decision in United States v. Councilman, 418 F.3d 67, 71 (1st Cir. 2005), the
Mercer judge held that "when there is a delay inherent in the transmission of an
electronic communication that involves a brief [storage] period . . . before it can
possibly be intercepted . . . an interception can occur after an electronic
communication is held briefly in electronic storage during its transmission," as
would be the case with the fifteen-minute delays. The judge held "placing of
the electronic communications on Facebook servers prior to the dissemination
[wa]s intrinsic to the transmission process."
Like the Atlantic motion judge, the Mercer judge was also concerned with
the thirty-day length of the CDW because it raised "legitimate concerns as it
[was] a prolonged period of intrusion on an individual's privacy." The order to
quash the Mercer CDW was, like the Atlantic order, limited to the compelled
disclosures of the contents of prospective electronic communications generated
after issuance of the CDW.
II.
A- 3350-20
10
A.
After the orders were entered, the State moved for leave to appeal, which
we granted in both cases. On appeal, the State's sole legal argument is that the
motion judges erred by granting Facebook's motions to partially quash the
CDWs.
The State's Clarified Demand for Stored and To-Be-Stored Data Up to 30 Days
At oral argument before us, the State clarified it does not seek the
contemporaneous transmission of the account holders' Facebook information,
despite the language contained in the CDWs that included the State being given
"real-time" access through "cloned" or "ghost" or "duplicate" accounts.
According to the State, Facebook historically required that language before it
would comply with the CDWs. Through the warrants, the State seeks to obtain,
on an ongoing basis, information that has been stored by Facebook through the
date of service of the warrant and that which Facebook will store in the future
for a period of thirty days.
Despite the State's confirmation that it does not seek to intercept
information in "real-time," Facebook contends that there is no federal or state
legal authority to allow "the State to obtain the contents of communications that
have not yet occurred," without a wiretap order. Doing so "would allow law
A- 3350-20
11
enforcement to obtain all prospective communications within minutes after they
are stored, on an ongoing basis, for an indefinite period of time, based solely on
a warrant" that was issued upon a showing of probable cause that existed at an
earlier time. It is undisputed that if the State must secure a wiretap order, it will
have to meet a higher burden relating to its need for a wiretap to secure the
information it seeks.
Based on that framing of the issue before us, we consider under what
parameters, if any, the State can secure through CDWs not only historically
stored electronic information, but also later stored information.
Our Scope of Review
We initially observe that as these matters do not involve any disputed
facts, and call for statutory and constitutional interpretation, our review is de
novo. State v. Hawkins, 461 N.J. Super. 556, 560 (App. Div. 2019). Based on
our de novo review of the applicable principles of law, we conclude that
prospective information can be obtained through a CDW, but only for a limited
amount of time, as contemplated by our statutes and court rules. As discussed
infra, we determine that limit by relying upon our court rules as they relate to
execution of warrants generally.
B.
A- 3350-20
12
Salient Differences Between CDWs and Wiretap Orders
The present appeal highlights the different burdens law enforcement must
satisfy before being able to secure a CDW or wiretap order. Succinctly, a CDW
is markedly different from a wiretap order. State v. Finesmith, 408 N.J. Super.
206, 211-12 (App. Div. 2009). "A wiretap order permits the interception by law
enforcement of a communication contemporaneous with the transmission while
a CDW is directed to acquisition of communications in post-transmission
electronic storage kept by an electronic communication service [(ECS)] or
remote computing service [(RCS)] for reasons of backup protections for the
communication." Ibid. (emphasis added). "By definition, an electronic
communication in storage cannot be 'intercepted' because it is not
contemporaneous with the transmission." Id. at 212.
In In re Application of State for Communications Data Warrants to Obtain
the Contents of Stored Communications from Twitter, Inc. (In re CDWs), 448
N.J. Super. 471 (App. Div. 2017), we held that "the audio portions of the videos
and video messages held in the accounts by Twitter are 'electronic
communications' under the [New Jersey Wiretapping and Electronic
Surveillance Control Act" (NJWESCA), N.J.S.A. 2A:156A-1 to -37], in
electronic storage and accessible to the State through the CDWs issued by the
A- 3350-20
13
Law Division judge, as compared to interception of "electronic communications
in transmission." Id. at 485-86. In reaching our holding, we summarized as
follows the different burdens of proof the State must satisfy to obtain a wiretap
order or a CDW:
The State may apply ex parte to designated judges for
"an order authorizing the interception of a wire, or
electronic or oral communication . . . when such
interception may provide evidence of the commission
of" certain enumerated crimes. N.J.S.A. 2A:156A-8.
However, the State must shoulder a heavy burden
before it may "intercept" a communication:
In part, the judge must find probable cause to
believe that
a. The person whose communication
is to be intercepted is engaging or
was engaged over a period of time as
a part of a continuing criminal
activity or is committing, has or had
committed or is about to commit an
[enumerated] offense . . . ;
b. Particular communications
concerning such offense may be
obtained through such interception;
[and]
c. Normal investigative procedures
with respect to such offense have
been tried and have failed or
reasonably appear to be unlikely to
succeed if tried or to be too
dangerous to employ.
A- 3350-20
14
[State v. Ates, 217 N.J. 253, 266-267
(2014) (alterations in original)
(quoting N.J.S.A. 2A:156A-10(a) to
(c)).]
The Amendment also created a new crime under the
Act. N.J.S.A. 2A:156A-27 makes it unlawful to
"knowingly . . . obtain[] . . . access to a wire or
electronic communication while that communication is
in electronic storage." With limited exceptions, an
electronic communication service "shall not knowingly
divulge . . . the contents of a communication while in
electronic storage . . . ." N.J.S.A. 2A:156A-28(a)(1).
One such exception permits disclosure to law
enforcement "of the contents of an electronic
communication," but not a wire communication,
"without notice to the subscriber . . . if the law
enforcement agency obtains a warrant[,]" i.e., a CDW.
N.J.S.A. 2A:156A-29(a)(5). We have previously held
a CDW is not subject to the more
restrictive procedures and enhanced
protections of the . . . Act, which include a
showing of necessity because normal
investigative procedures have failed,
N.J.S.A. 2A:156A-10. By contrast,
N.J.S.A. 2A:156A-29(a) requires only that
a law enforcement agency obtain a warrant
upon a showing of probable cause.
[Finesmith, 408 N.J. Super. at 212.]
Additionally, unlike a wiretap order which may only be
issued to intercept evidence of the commission of
certain crimes, N.J.S.A. 2A:156A-8, a CDW may be
A- 3350-20
15
obtained without regard to the nature of the crime being
investigated.
[In re CDWs, 448 N.J. Super. at 476-78 (emphases
omitted) (footnotes omitted) (quoting Ates, 217 N.J. at
266-67, and Finesmith, 408 N.J. Super. at 212).]
Moreover, if issued, a wiretap order requires that "[e]very interception . . .
is subject to minimization, N.J.S.A. 2A:156A-12(f), requiring the State to
terminate 'as soon as practicable,' any unnecessary interception." Id. at 482 n.8.
State and Federal Statutes
As discussed in more detail infra, separate state and federal laws restrict
the issuance of CDWs and wiretap orders under limited circumstances and
subject to certain conditions. 5 In order to understand the concerns those laws
are meant to address, we briefly turn our attention to the fundamental privacy
5
Where the federal and state statutes overlap, we look to the federal court for
guidance. As we have explained:
Although the [NJWESCA] is "more restrictive than the
federal act in some respects," we have recognized that
"when sections of the federal and state acts are
substantially similar in language, it is appropriate to
conclude that our Legislature's 'intent in enacting the
sections of the . . . Act . . . was simply to follow the
federal act.'" Interpretations of the federal act,
therefore, provide additional guidance in construing
similar provisions of the NJWESCA.
[In re CDWs, 448 N.J. Super. at 479-80.]
A- 3350-20
16
rights that warrant constitutional protection from government searches,
including through the use of wiretaps, which warrant the application of higher
standards for the interception of an individual's prospective communications
with others on an ongoing basis as compared to obtaining historically stored
material.
Constitutional Limitations
The Fourth Amendment of the United States, incorporated in all States
through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 (1961),
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no [w]arrants shall issue, but upon
probable cause, supported by [o]ath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
[U.S. Const. amend. IV.]
The New Jersey Constitution provides the same protections in nearly identical
language. N.J. Const. art. I, ¶ 7.
"The Fourth Amendment prohibits a general warrant." United States v.
Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002). Lawful searches and seizures
must be limited to particular items. To satisfy the Fourth Amendment, a search
A- 3350-20
17
warrant "must . . . describe the things to be seized with sufficient particularity
and be 'no broader than the probable cause on which it is based.'" Ibid. (quoting
United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1991)).
Fourth Amendment protections extend to personal conversations. "The
right of privacy -- the right to be free from government officials arbitrarily
prying into our personal conversations -- is one of the preeminent rights in our
constitutional hierarchy." State v. McQueen, 248 N.J. 26, 31 (2021). "[I]t has
been an established principle, at least since the Supreme Court's decision in Katz
v. United States, [389 U.S. 347, 361-62 (1967) (Harlan, J., concurring),] that the
Fourth Amendment protects individuals from intrusions upon their private
electronic conversations." R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No.
2149, 894 F. Supp. 2d 1128, 1142 (D. Minn. 2012). This protection extends to
"not only physical searches but also electronic interception of phone
conversations." State v. Feliciano, 224 N.J. 351, 367 (2016).
In 1967, in two "landmark" cases, Berger v. New York, 388 U.S. 41, 54
(1967) and Katz, 389 U.S. at 348, the United States Supreme Court applied
Fourth Amendment limitations upon searches that employed electronic
surveillance, specifically, "phone conversations," to "safeguard individual
privacy rights in this area." Ates, 217 N.J. at 266. The Fourth Amendment's
A- 3350-20
18
application to "the area of electronic surveillance" of private conversations
remains governed by the constitutional principles espoused in the Supreme
Court's "seminal opinions in Katz and Berger." Feliciano, 224 N.J. at 367.
In Berger, the Court held that a New York statute's "blanket grant of
permission to eavesdrop" lacked "adequate judicial supervision or protective
procedures," in part because the two-month, court-ordered eavesdropping period
allowed under the statute was "the equivalent of a series of intrusions, searches,
and seizures pursuant to a single showing of probable cause." 388 U.S. at 59.
It also authorized two-month extensions of the surveillance window premised
only on the "public interest," which could be satisfied by reasserting the original
grounds for probable cause, without showing "present probable cause for the
continuance of the eavesdrop." Ibid. The statute "place[d] no termination date
on the eavesdrop once the conversation sought [wa]s seized," leaving it "entirely
in the discretion of the officer" whether to continue the surveillance. Id. at 59-
60.
Katz, 389 U.S. at 348, also involved electronic surveillance. FBI agents,
without obtaining a warrant, installed an electronic recording device that
captured six electronic recordings of an individual using a publicly accessible
telephone booth to illegally transmit gambling information. Ibid. The Court
A- 3350-20
19
held that "electronically listening to and recording the petitioner's words
violated the privacy upon which he justifiably relied," which was "a 'search and
seizure' within the meaning of the Fourth Amendment" that needed a warrant to
justify it. Id. at 353. Echoing Berger, the Katz majority held, "[b]ypassing a
neutral predetermination of the scope of a search" left the subjects of the
surveillance "secure from Fourth Amendment violations 'only in the discretion
of the police,'" and violated our constitutional structure. Id. at 358-59 (quoting
Beck v. Ohio, 379 U.S. 89, 97 (1964)).
C.
Further Statutory Developments
Against that backdrop, one year after Berger and Katz, Congress enacted
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Federal
Wiretap Act), 18 U.S.C. §§ 2510 to 2522, which aimed to "define on a uniform
basis the circumstances and conditions under which the interception of wire and
oral communications may be authorized" and "to prohibit any unauthorized
interception of such communications, and the use of the contents thereof in
evidence." Pub. L. No. 90-351, § 801(b), 82 Stat. 197 (1968). "Title III
established minimum standards for federal and state law enforcement officials
A- 3350-20
20
to follow when seeking to intercept wire, oral, and electronic communications."
Ates, 217 N.J. at 266 (citing 18 U.S.C.A. 2516(2)).
Later that same year, New Jersey enacted the NJWESCA modeled on the
Federal Wiretap Act. L. 1968, c. 409, §§1 to 28; Ates, 217 N.J. at 266. The
purpose of the state Act was to "protect[ ] the privacy of individuals," and to
"control[ ] intrusive police activity." State v. Toth, 354 N.J. Super. 13, 21 (App.
Div. 2002). Our Supreme Court has held that "[t]he Act must be strictly
construed to safeguard an individual's right to privacy." Ates, 217 N.J. at 268.
Under both statutes, any person who "intentionally," under the federal
law, or "purposely" in New Jersey, "discloses, or endeavors to disclose . . . the
contents of any wire, oral, or electronic communication, knowing or having
reason to know that the information was obtained through the interception of a
wire, oral, or electronic [6] communication" shall be subject to a fine or criminal
imprisonment, or both. 7 18 U.S.C. § 2511(1); N.J.S.A. 2A:156A-3. In New
6
"[E]lectronic" communication was added to this group in the federal law in
1986, and in the NJWESCA in 1993. Pub. L. No. 99-508, §§ 101 to 111, 100
Stat. at 1849; L. 1993, c. 29, § 1.
7
The statutes also make violators subject to civil suit. 18 U.S.C. § 2511(1);
N.J.S.A. 2A:156A-24.
A- 3350-20
21
Jersey, the person "shall be guilty of a crime of the third-degree." N.J.S.A.
2A:156A-3.
In accord with Katz, both Acts allow qualified law enforcement officials
to obtain from a judge with appropriate jurisdiction an ex parte order
"authorizing . . . the interception of wire or oral communications" when it "may
provide evidence" that would aid in the investigation of any of a series of
specified criminal offenses. 18 U.S.C. § 2516(1)(g); N.J.S.A. 2A:156A-8.
"Intercept," is defined in both statutes as "the aural or other [8] acquisition of the
contents of any wire, electronic, [9] or oral communication through the use of any
electronic, mechanical, or other device." 18 U.S.C. § 2510(4); N.J.S.A.
2A:156A-2(c).
In accord with Berger, the federal and state Acts further set forth
procedures law enforcement officers must follow when seeking such
applications. Among other things, the statutes mandate that affiants on whose
sworn oaths wiretap orders rest must give a "particular" description of the "type
8
As enacted, the statutes applied strictly to "aural acquisition," Pub. L. No. 90-
351, § 802, 82 Stat. at 212; L. 1968, c. 409, § 2, but were later expanded.
9
"Electronic" was added in the 1986 amendments to the Federal Wiretap Act,
Pub. L. 99-308, § 101(a)(1)(D), 100 Stat. 449, and in the 1993 amendments to
the State Wiretap Act, L. 1993, c. 29, § 1.
A- 3350-20
22
of communication to be intercepted" and a factual statement demonstrating that
other investigative techniques had failed, were "unlikely to succeed," or were
"dangerous." 18 U.S.C. § 2518(1)(b)(iii), (c); N.J.S.A. 2A:156A-9(c)(3), (6).
These and similar mandatory procedures were designed to bring electronic
eavesdropping by law enforcement within the constitutional confines
established in Berger and Katz the previous year. See State v. Minter, 116 N.J.
269, 274-75 (1989) ("The [Federal Wiretap Act] . . . responded to the concerns
raised in Berger and Katz by creating a limited system of wire surveillance and
electronic eavesdropping within the framework of the [F]ourth [A]mendment
and the guidelines of Berger and Katz.").
A- 3350-20
23
D.
More Statutory Changes
Eighteen years later, Congress enacted the Electronic Communications
Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510 to 2521. Pub. L. No. 99-508,
100 Stat. 1848 (1986). Title I amended the Federal Wiretap Act, modifying
certain definitions and adding provisions concerning mobile tracking devices.
§§ 101 to 111, 100 Stat. at 1848-59. Title II was referred to as the Stored Wire
and Electronic Communications and Transactional Records Access Act (SCA),
a new chapter, codified at 18 U.S.C. §§ 2701 to 2711. Pub. L. No. 99-508, §§
201 to 202, 100 Stat. at 1860-68. Title III, codified at 18 U.S.C. §§ 3121 to
3127, concerned "pen registers" and "trap and trace" devices. 10 Pub. L. No. 99-
508, §§ 301 to 302, 100 Stat. at 1868-73.
Seven years after the federal amendments, in 1993, the New Jersey
Legislature amended its own statutory scheme to substantially conform state law
10
"A 'pen register' is a device that records the numbers dialed for outgoing calls
made from the target. A trap and trace device captures the numbers of calls
made to the target phone." In re Application for Pen Reg. & Trap/Trace Device
with Cell Site Location Auth., 396 F. Supp. 2d 747, 752 (S.D. Tex. 2005)
(footnote omitted).
A- 3350-20
24
to the ECPA.11 N.J.S.A. 2A:156-27 to -34. The State Legislature, like Congress,
altered the definition of "intercept" to include the acquisition of "the contents of
any . . . electronic communication" in addition to "any wire or oral
communication." 18 U.S.C. § 2510(4); N.J.S.A. 2A:156A-2(c).12
The federal and state statutes both define "electronic communication" to
include "any transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photo optical system that affects interstate
or foreign commerce." 18 U.S.C. § 2510(12); N.J.S.A. 2A:156A-2(m).
"[C]ontents" of electronic communications include "any information concerning
the substance, purport, or meaning of that communication." 18 U.S.C. §
2510(8); N.J.S.A. 2A:156A-2(g). "Electronic storage" means, "any temporary,
intermediate storage of a wire or electronic communication incidental to the
electronic transmission thereof," as well as "any storage of such communication
11
The NJWESCA "was modeled after Title III of the [Federal Wiretap] Act, 18
U.S.C.A. §§ 2510 to 2520, . . . and must be strictly construed to safeguard an
individual's right to privacy." In re CDWs, 448 N.J. Super. at 479 (internal
quotation marks and citations omitted).
A- 3350-20
25
by an electronic communication service for . . . backup protection." 18 U.S.C.
§ 2510(17); N.J.S.A. 2A:156A-2(q).
The SCA and the NJWESCA, provide different standards for the
disclosure of stored electronic records depending on whether the person or entity
doing the disclosing is an ECS or an RCS. The SCA defines an ECS as "any
service which provides to users thereof the ability to send or receive wire or
electronic communications," 18 U.S.C. § 2510(15), and an RCS as a service
providing users with "computer storage or processing services by means of an
electronic communications system." 18 U.S.C. § 2711(2). The NJWESCA
defines the terms substantially similarly. N.J.S.A. 2A:156A-2(p), (s). However,
when a government entity 13 seeks to compel disclosure of the contents of
electronic communications without providing notice to the subscriber or
customer, the significance of the distinction between ECS and RCS providers
erodes.
13
One distinction between the federal and state statutes pertains to the nature
of the entity that is compelling disclosures. While the SCA broadly concerns
records sought by any "governmental entity," 18 U.S.C. § 2703(c)(B), the
NJWESCA is limited to "[a] law enforcement agency, but no other governmental
entity." N.J.S.A. 2A:156A-29(a). As the governmental entities here were both
law enforcement agencies, this distinction is immaterial in these cases.
A- 3350-20
26
Under subsection (a) of 18 U.S.C. § 2703, "governmental entit[ies] may
require the disclosure by a provider of [ECS] of the contents of a wire or
electronic communication, that is in electronic storage in an [ECS] for one
hundred and eighty days or less, only pursuant to a warrant . . . issued using
State warrant procedures," in state court matters. 18 U.S.C. § 2703(a). For
communications in storage longer than that, subsection (b), pertaining to RCS
providers, controls. Similarly, under subsection (b), without notice, disclosure
is only available "if the governmental entity obtains a warrant . . . in the case of
a State court, issued using State warrant procedures." 18 U.S.C. §
2703(b)(1)(A). In language more direct than the federal statute, but amounting
to the same thing, the New Jersey statute provides that, with respect to both ECS
and RCS providers, "[a] law enforcement agency . . . may require the disclosure
by a provider . . . of the contents of an electronic communication without notice
to the subscriber or the customer if the law enforcement agency obtains a
warrant." N.J.S.A. 2A:156A-29(a). Unlike the federal statute, there is no
qualifier in the text of the NJWESCA requiring that the electronic
communication, the disclosure of which is compelled under the search warrant,
be "in electronic storage." Ibid.
A- 3350-20
27
III.
A.
The State's Contentions of Error
With that understanding of the federal and state laws in this area, we turn
to the State's contentions on appeal.
On appeal from both orders, the State principally argues that the judges
erred by mistakenly holding that the compelled disclosures of the contents of
prospective communications from electronic storage after initial transmission
would constitute "interceptions" under the wiretap acts. In the State's view, "an
interception occurs only when the content of the communication is acquired
contemporaneously with its transmission," in "real-time," which does not apply
to the searches and seizures here. These prospective electronic communications
are not contemporaneous with transmission, the State notes, since the CDWs
required them to be sent to the State every fifteen minutes "as part of the
snapshot of the user's account--a process wholly unrelated to the messages'
transmission." The wiretap acts are not concerned with the "acquisition of
electronic communications from storage, no matter how brief that storage may
be," under the State's construction.
A- 3350-20
28
The State maintains that because no wiretap order was needed, the issue
was governed by the SCA and by the NJWESCA's warrant provisions applicable
to electronically stored information. Congress intended for the SCA to apply to
the acquisition of the contents of any communications obtained from electronic
storage, regardless of whether the coming to rest of the communications in
storage occurred "before or after the issuance of process." The SCA requires
only a search warrant based on probable cause to compel disclosure of "a
communication that has come to rest in storage . . . so long as the temporary,
intermediate storage is 'incidental to'--i.e., not an essential part of--the
communication's transmission from its point of origin to its point of reception ."
Because Congress, and our own Legislature, determined the "acquisition of
electronic communications from electronic storage does not implicate the same
privacy concerns as the real-time interception," those legislative judgments
should be respected.
The Atlantic judge, per the State, "mistakenly focused on the timing of the
acquisition vis-à-vis the issuance of the CDW" in "conclud[ing] that the
acquisition of any communication transmitted after the issuance of the
CDW[] . . . '[wa]s tantamount to eavesdropping,'" and thereby required a wiretap
order. In so holding, the judge failed to recognize the contemporaneity
A- 3350-20
29
component of the wiretap acts, instead focusing on the fact that the CDW sought
prospective communications, which was irrelevant. Where there was no
anticipated interception contemporaneous with transmission, no wiretap order
was needed.
As to the Mercer judge, despite "correctly recogniz[ing]" that Facebook
was not even capable of granting "the State real-time access to a user's
communications," the judge nevertheless "mistakenly concluded" that the
contemporaneity requirement could be "satisfied by the acquisition of a
communication from electronic storage, potentially as long as fifteen minutes
later." Instead of "looking at the transmission from the point of origin to the
point of reception"—the State's interpretation of the wiretap acts—the judge
instead looked to the transmission from Facebook to law enforcement in
deciding the contemporaneity requirement was satisfied.
B.
The Turnover of Stored and Prospectively Stored Electronic
Information Is Not An "Interception"
The nature of the arguments raised by the State requires us to consider the
intention of the Legislature when it enacted the NJWESCA in order to determine
A- 3350-20
30
if the subject CDWs' requirement for transmittal of prospective electronically
stored information violated the Legislature's will. We conclude it did not.
"The overriding goal" of statutory interpretation "is to determine . . . the
intent of the Legislature, and to give effect to that intent." State v. Hudson, 209
N.J. 513, 529 (2012). "The inquiry thus begins with the language of the statute,
and the words chosen by the Legislature should be accorded their ordinary and
accustomed meaning." Ibid. Courts should "apply to the statutory terms the
generally accepted meaning of the words used by the Legislature," Patel v. N.J.
Motor Vehicle Comm'n, 200 N.J. 413, 418 (2009), "read . . . in context with
related provisions so as to give sense to the legislation as a whole." DiProspero
v. Penn, 183 N.J. 477, 492 (2005).
"If the language leads to a clearly understood result, the judicial inquiry
ends without any need to resort to extrinsic sources." Hudson, 209 N.J. at 529.
"In other words, extrinsic aids may not be used to create ambiguity when the
plain language of the statute itself answers the interpretative question; however,
when the statutory language results in more than one reasonable interpretation,
then resort may be had to other construction tools . . . in the analysis." Id. at
529-30. When "the Legislature's intent is clear from the statutory language,"
courts should "apply the law as written." Shelton v. Restaurant.com, Inc., 214
A- 3350-20
31
N.J. 419, 429 (2013). However, "extrinsic evidence may be considered when 'a
plain reading of the statute leads to an absurd result or if the overall statutory
scheme is at odds with the plain language.'" Hardy ex rel. Dowdell v. Abdul-
Matin, 198 N.J. 95, 101 (2009) (quoting DiProspero, 183 N.J. at 493).
With these guiding principles in mind, we turn to the NJWESCA
requirements for wiretaps. Again, the state and federal Acts preclude the
intentional or purposeful interception of any electronic communication, as well
as the intentional or purposeful "disclos[ure]" or "use[ ]" of "the contents of any"
electronic communication while "knowing . . . that the information was obtained
through the interception." 18 U.S.C. § 2511(1); N.J.S.A. 2A:156A-3. The key
to whether the electronic communications sought through the CDWs are subject
to a wiretap's requirements is: whether the CDWs ordered communications to
be "intercept[ed]." Ibid. We conclude they did not.
As already noted, an "[i]ntercept," is "the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the use of any
electronic, mechanical, or other device." 18 U.S.C. § 2510(4); N.J.S.A.
2A:156A-2(c). Although this definition "does not explicitly require that the
acquisition of a communication occur contemporaneously with the transmission
of the communication . . . courts interpreting this language have uniformly
A- 3350-20
32
concluded that an intercept requires contemporaneity." Luis v. Zang, 833 F.3d
619, 627 (6th Cir. 2016); see also Fraser v. Nationwide Mut. Ins. Co., 352 F.3d
107, 113 (3d Cir. 2003) ("Every circuit court to have considered the matter has
held that an 'intercept' under the [Federal Wiretap Act] must occur
contemporaneously with transmission."); accord Boudreau v. Lussier, 901 F.3d
65, 77-78 (1st Cir. 2018); Szymuszkiewicz, 622 F.3d at 705-06; United States
v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002); Steve Jackson Games, Inc. v.
U.S. Secret Serv., 36 F.3d 457, 461-62 (5th Cir. 1994); United States v. Reyes,
922 F. Supp. 818, 836 (S.D.N.Y. 1996).
Here, just like we did when we considered the information from Twitter
that the State sought through a CDW in In re CDWs, "[w]e [again] agree with
the State and the overwhelming federal precedent that holds interception, as
defined by the [NJWESCA] and the federal act, contemplates the acquisition of
the communication contemporaneously with its transmission." 448 N.J. Super.
at 485-86 (emphasis added) (citations omitted). As in that case, "[i]n this case,
the State does not seek to access the electronic communications in transmission.
Rather, the State seeks to access the electronic communications already in
'electronic storage' on [Facebook's] servers," and those that will be. Ibid.
A- 3350-20
33
One textual basis for this interpretation is that the ECPA defines
"intercept" as applying to "electronic communications" but does not specifically
mention communications in electronic storage. 18 U.S.C. § 2510(4). Since an
"electronic communication" refers to "any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in
part," § 2510(12) (emphasis added), "intercept . . . does not apply to the
acquisition of electronic signals that are no longer being transferred." Luis, 833
F.3d at 627. Rather, "[o]nce the transmission of the communication has ended,
the communication ceases to be a communication at all," and instead "becomes
part of 'electronic storage[,]'" at which point "a person cannot 'intercept' the
former communication because the term intercept . . . does not apply to
electronic storage." Ibid.
An interception "must, in other words, catch the communication 'in flight'
before the communication comes to rest and ceases to be a communication." Id.
at 627-28. The upshot is that "[t]he level of protection provided stored
communications under the SCA is considerably less than that provided
communications covered by the [Federal] Wiretap Act[,]" and "the procedures
law enforcement must follow to access the contents of stored electronic
A- 3350-20
34
communications" are likewise "considerably less burdensome and less
restrictive than . . . under the Wiretap Act." Konop, 302 F.3d at 879.
As already mentioned, New Jersey courts have followed this federal
precedent regarding the contemporaneity requirement of "intercept" when
applying the NJWESCA. Finesmith, 408 N.J. Super. at 212; In re CDWs, 448
N.J. Super. at 485. Several other jurisdictions have as well. See, e.g., Sparks v.
Indiana, 100 N.E.3d 715, 720 (Ind. Ct. App. 2018) (where woman discovered
on boyfriend's Facebook account "a recording of a conversation that had already
taken place," she "did not intercept a communication in transit," but "accessed
a communication in storage," and therefore did not violate the Federal Wiretap
Act); Ohio v. Poling, 938 N.E.2d 1118, 1123 (Ohio Mun. 2010) (woman's
reading and copying of her daughter's received email messages was not an
"interception" under the ECPA); Evans v. Evans, 610 S.E.2d 264, 271 (N.C. Ct.
App. 2005) (holding extraction of emails stored on and recovered from hard
drive of family computer were not "intercepted" contemporaneously with
transmission); Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 979
(M.D. Tenn. 2008) (finding persuasive an interpretation of "intercept" in
Tennessee's Wiretap Act that "unless an e-mail is actually acquired in its split
A- 3350-20
35
second transmission over a computer network, it cannot be 'intercepted' as that
term is reasonably understood").
To the extent that, in their rulings, the motion judges here held the
compelled disclosures of prospective electronically stored communications
authorized by the CDWs were "interceptions" under the NJWESCA, those
interpretations of that statutory term misapprehended the transmission
contemporaneity requirement set by the above precedents and were therefore
incorrect.14 In other words, because, the officers here would have no way to
"catch the communication[s]" at issue "in flight," before they "c[a]me[] to rest"
in electronic storage on Facebook's servers, the CDWs did not authorize the
"interception" of any communications at all, and did not, in that respect,
implicate the federal or state Acts. Luis, 833 F.3d at 627-28 (emphasis added);
accord Finesmith, 408 N.J. Super. at 212.
Councilman and Szymuszkiewicz do not direct otherwise. Councilman
was an appeal from the dismissal of an indictment charging an email provider's
employee with intercepting, disclosing, and using the contents of electronic
communications, and with "causing a person providing an [ECS] to divulge the
14
Considering the warrants' language about transmissions through mirrored or
ghost accounts accessible by law enforcement, we cannot criticize them for
reaching their conclusions.
A- 3350-20
36
communications' contents to persons other than the addressees," contrary to 18
U.S.C. § 2511(1)(a) of the Federal Wiretap Act. Councilman, 418 F.3d at 71.
To gain a commercial advantage, the defendant in Councilman directed the
systems administrator of the email service to modify its mail-delivery agent
program to copy messages from a specified domain before the messages reached
the clients, and to then store them in a separate mailbox accessible to the
defendant. Id. at 70-71. The litigation posture presented no occasion to address
"whether the term 'intercept' applies only to acquisitions that occur
contemporaneously with the transmission of a message from sender to recipient
or, instead, extends to an event that occurs after a message has crossed the finish
line of transmission." Id. at 80. Still, the panel noted it was "highly unlikely"
that the defendant could show he had not "intercepted" the emails, because they
were "acquired while they were still en route to the intended recipients." Ibid.
(emphasis added).
Szymuszkiewicz, 622 F.3d at 704, also concerned arguments raised by a
criminal defendant charged with violating 18 U.S.C. § 2511(1)(a) of the Federal
Wiretap Act. The evidence demonstrated that the defendant created a "rule" on
the wiretapping victim's computer, "implemented on the server side," pursuant
to which, whenever the victim received an email, the message would first be
A- 3350-20
37
routed through the email provider's server, which "retained the message in its
own files and dispatched two copies," one for the victim and one for the
defendant, "within the same second." Ibid. (emphasis added). The court
reasoned, "[t]he copying at the server was the unlawful interception, catching
the message 'in flight.'" Ibid.
Here, unlike in Councilman and Szymuszkiewicz, the CDWs did not grant
access to the contents of prospective communications on Anthony's and
Maurice's Facebook accounts while they were either "en route," or "within the
same second," that they were placed on Facebook's servers. Rather, police
would not have access until, at earliest, fifteen minutes after any electronic
communication's transmission. Though the CDWs compelled Facebook to
disclose the entire stored contents of each target's Facebook account for thirty
prospective days, that did not make the disclosures contemporaneous with
transmission. Luis, 833 F.3d at 627. Rather, once the communications would
come to "rest" on Facebook's servers, they would be in "electronic storage," and
thereby subject not to the wiretap acts, but to the SCA and the provisions of the
NJWESCA that mirror that statute. Ibid.
A- 3350-20
38
C.
Constitutional and Other Limitations on Duration
Our determination that a wiretap order was not necessary does not
necessarily lead us to conclude that the CDWs issued in the present matters met
the requirements of the state NJWESCA or the federal SCA or either the federal
or New Jersey constitutions. Our consideration of those issues leads us to
conclude that, while the CDWs complied with the NJWESCA to a point, an
additional limitation had to be imposed on the duration of the warrants in order
to pass constitutional muster and to be in compliance with our court rules.
At the outset, we observe that it cannot be disputed that there is no
language in the NJWESCA that expressly bars the production of prospectively
stored information by a provider such as Facebook. For that reason, before us,
the parties engaged in textual arguments as to why we should or should not read
into the Act grounds for allowing through a CDW the release of prospectively
stored electronic information or bar its release.
Addressing the language of the applicable statutes, the crux of the textual
dispute between Facebook and the State regarding the Federal SCA revolves
around what "is" means in Congress's reference to an electronic communication
"that is in electronic storage." The State contends that if Congress intended for
A- 3350-20
39
"the SCA to apply only to communications in storage at the time a warrant was
issued," and not to communications yet to exist, it would have used the same
verb tense in 18 U.S.C. § 2703(a) when referring to communications in shorter -
term electronic storage, as it did later in the same paragraph when referring to
communications in longer-term electronic storage. Specifically, Congress
referred to a communication in storage for one hundred and eighty days or less
as one "that is in electronic storage in an electronic communications system,"
while referring to a communication in longer-term storage as one "that has been
in electronic storage." Ibid. (emphasis added).
The verb tense difference, the State posits, is because the present tense for
short-term electronic storage "includes any communication that is in storage
presently or in the future, without any limitation." By contrast, the present
perfect tense for longer-term storage refers only to storage "completed by the
present time." If Congress intended the SCA to apply only to communications
in storage at the time when legal process is issued, as both judges essentially
held, the present perfect tense would have sufficed for both shorter and longer -
term stored electronic communications. Instead, Congress intended
communications in shorter-term storage would include "communications that
are in storage presently or come to be in storage in the future," while
A- 3350-20
40
communications in longer-term storage would include only communications
whose storage had been complete longer than 180 days. In support, the State
relies on the federal Dictionary Act's provision stating "unless the context
indicates otherwise . . . words used in the present tense include the future as well
as the present." 1 U.S.C. § 1. The State claims this proves Congress intended
for the statute to apply prospectively to communications that have yet to exist
when a warrant issues. Facebook contends the "context" here includes
Congress's "comprehensive statutory scheme governing federal surveillance
law," which contravenes the State's interpretation of the word "is," particularly
because the SCA was intended to be retrospective while Titles I and III of the
ECPA were intended to be prospective.
As to the NJWESCA, the language is broader than its federal counterpart,
stating, in the future conditional tense, that "[a] law enforcement agency . . .
may require the disclosure by a provider . . . of the contents of an electronic
communication without notice to the subscriber or the customer if the law
enforcement agency obtains a warrant." N.J.S.A. 2A:156A-29(a). Again, absent
from that Act, is any qualifying language requiring that the electronic
communications ordered to be disclosed by the search warrant to ever be "in
electronic storage" in the past, the present, or the future. Inverting the statute
A- 3350-20
41
for illustrative purposes, the New Jersey Act simply states: "[I]f the law
enforcement agency obtains a warrant," the agency "may require the
disclosure . . . of the contents of an electronic communication." Ibid. Implicit
in the absence of the "electronic storage" qualifier is that a warrant compels
disclosure of the contents of the electronic communications specified in the
warrant, regardless of whether they are "in electronic storage" when process is
issued. Ibid.
By contrast, subsections (c)(1) and (c)(4) of the NJWESCA, concerning
location information, provide, in the present perfect conditional tense, that
when, among other possible statutory predicates, a "law enforcement agency"
either "has obtained a warrant[,]" or, in the present tense, "believes in good faith
that an emergency . . . requires disclosure without delay of information relating
to the emergency[,]" the provider to whom the request is made "shall disclose,"
among other things, "the location information for a subscriber's . . . device."
N.J.S.A. 2A:156A-29(c)(1), (4).
Implicit in the clause in (c)(4) that an officer's good-faith present belief in
an "emergency" justifies disclosure of location information is that the relevant
location information will be prospective to the issuance of process and as near
to real-time as possible. After all, it would be illogical to construe (c)(4)
A- 3350-20
42
otherwise: allowing officers, during an ongoing emergency, to compel
disclosure of only temporally distant, possibly stale location information.
Assuming then that the Legislature used the present perfect tense to allow
the compelled disclosures of future communications in subsection (c), it would
be incongruous if the same Legislature in the same statute used the future
conditional tense to disallow disclosures of future communications in subsection
(a). See Borough of N. Haledon v. Bd. of Educ. of Manchester Reg'l High Sch.
Dist., Passaic Cnty., 305 N.J. Super. 19, 28 (App. Div. 1997) (discussing canon
of statutory interpretation "that statutes dealing with the same subject matter
ought to be construed together 'as a unitary and harmonious whole,' . . . so that
each may be fully effective" (quoting Clifton v. Passaic Cnty. Bd. of Tax'n, 28
N.J. 411, 421 (1958))). It would also lead to an absurd inversion of the warrant
preference, since officers could use (c)(4) to warrantlessly procure real -time
location information based only on their subjective discretionary judgment that
an emergency exists, but, under Facebook's construction of the NJWESCA as
strictly retrospective from the vantage point of when the warrant issues, the
officers could not obtain that same information with a warrant.
Similarly, focusing on the federal SCA, the entirety of § 2703 is written
in the future conditional tense: i.e., only if something happens in the future
A- 3350-20
43
(e.g., police obtain a warrant) or something else may happen later (e.g., police
may require disclosure of the contents of stored electronic communications). If
"is" is at all ambiguous, the ordinary presumption is to read it to imply "is and
will be." 1 U.S.C. § 1. Other than the atypical warrant procedures here, nothing
else about the "context" in which "is" appears in § 2703(a) and (b)(1)(A)
displaces this default rule. For these reasons, we conclude that neither the
NJWESCA nor the SCA categorically bars the disclosure of prospective
electronic communications not yet in storage when legal process issues.
Having determined that the NJWESCA does not prevent the turning over
of prospectively stored electronic information, the question becomes for what
period of time must the provider continue to turn that information over. It is
undisputed that neither the federal nor the state Acts make any reference to such
a limitation, nor is it disputed that to pass constitutional muster some reasonable
limitation is required.
These CDWs in these matters directed in nearly identical language that
"execution of this [CDW] shall continue . . . provided that the USER NAME
and/or USER ID remain the same," for thirty consecutive days. (Emphasis
added). Although warrant procedures generally permit search warrants to
constitutionally authorize police to search for and seize evidence that will be in
A- 3350-20
44
a specific place only "in the future," see, e.g., Illinois v. Gates, 462 U.S. 213,
225-26 (1983) (upholding a warranted seizure even though items were not at
specified location until after warrant issued); State v. Earls, 214 N.J. 564, 588
(2013) (where the Court considered a series of continuous "24/7" intrusions
through a tracking system and found that a warrant, an emergency, or some other
warrant exception would all be sufficient to alleviate any privacy concerns
associated with such ongoing searches and seizures); State v. Mier, 147 N.J.
Super. 17, 20 (App. Div. 1977) ("There is no particular constitutional infirmity
in the mere fact that a warrant is sought to search for contraband which has not
as yet reached the destination described."), there is no state procedure that
authorizes warrant execution periods as lengthy as in these CDWs.
Rule 3:5-5(a)'s Ten-Day Limit
Our procedures, to which again federal law defers, see SCA, § 2703(a)
and (b)(1)(A) (authorizing the State to compel disclosures of electronic
communications in electronic storage without notice to the subscriber or
customer only to the extent warrants are "issued using State warrant
procedures"), mandate a search warrant "must be executed within 10 days after
its issuance." R. 3:5-5(a). Once executed during the ten-day period, any
additional warrants must be issued only upon another demonstration of probable
A- 3350-20
45
cause. See Berger, 388 U.S. at 54 (rejecting "a series of intrusions, searches,
and seizures pursuant to a single showing of probable cause").
Here, the CDWs' arbitrary inclusion of a thirty-day period for repeated
execution of the same warrant invalidated the warrants, as the duration allowed
law enforcement to accomplish what was tantamount to repeated intrusions
based on a single showing of probable cause existing at a particular time. To be
sure, the constitutional infirmity here was not that the warrants called for a
wiretap or interception of simultaneous communications, but instead was
founded upon the length and repeated nature of its execution without additional
showings of probable cause.
The compelled disclosures of all prospective contents of electronic
communications in a subscriber's social media account on an ongoing basis for
more than four weeks authorizes multiple intrusions into private
communications based on a single showing of probable cause, and therefore is
contrary to the particularity requirement of the Fourth Amendment under
Berger, 388 U.S. at 59. For that reason, the CDWs in their present form cannot
be enforced as to prospectively stored electronic information.
In 2013, the New Jersey Supreme Court in Earls addressed the disclosure
of cell phone users' location to law enforcement and observed that "Law and
A- 3350-20
46
practice have evolved in this area in response to changes in technology." 214
N.J. at 588. The same is true today as it relates to the evolving technology
surrounding stored electronic information.
The Ten-Day Limitation
In formulating an acceptable constitutional solution to the disclosure of
that information, we choose to apply a practical approach to the release of
prospective electronically stored communications under a CDW. To remain
within the parameters of state warrant procedure, the CDWs can be issued,
assuming probable cause is once again established, and served on Facebook
requiring that any information identified in the warrant and stored by Facebook
during the period up to the day it is served with the warrant must be turned over.
In addition, incorporating our state warrant procedures under Rule 3:5-5, going
forward, if the State serves a CDW on Facebook for the disclosure of prospective
electronic communications, no disclosures may be compelled beyond ten days
from the issuance of the warrant. And, Facebook can comply with that
requirement by producing the stored information on the day of or after th e
electronic communications have been stored.
Any further attempt to secure information from prospective time periods
must be based upon new CDWs issued on new showings of probable cause. We
A- 3350-20
47
believe that this practical approach, which modifies the trial courts' dispositions,
is consistent with the federal and state constitutions and our warrant procedures,
comports with the applicable statutes, and fairly balances the interests of the
parties before us.15
All other arguments raised in the parties' briefs either lack sufficient merit
to warrant discussion, R. 2:11-3(e)(1)(E), or are unnecessary to reach in light of
our disposition.
The orders appealed from are affirmed as modified, without prejudice to
the State's ability to reapply to the trial courts for approval of warrants consistent
with the limitations set forth in this opinion.
Affirmed as modified.
15
Again, we are not addressing any claims that might be raised by the users of
the Facebook accounts as to the scope of the CDWs as they are not before us
nor are the users apparently even aware of the investigations.
A- 3350-20
48