In a recent case decided by the Appellate Division in New Jersey, Facebook, Inc. v. State of New Jersey, the court considered whether communication data wire warrants (“CDWs”) or wiretap orders had to be served on Facebook for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation. The court held that a CDW rather than a wiretap order was required. (The court additionally held that the duration of the particular CDWs – 30 days – was too lengthy under New Jersey’s search warrant procedures and had to be modified to a 10 day duration.)

In reaching this decision, the Appellate Division reversed decisions of two trial judges who each had ruled that wiretap orders – not CDWs – were needed to compel Facebook to turn over information, i.e., images, videos, audio files, posts, comments, histories, the contents of private messages, etc., it would collect prospectively from the subjects of the investigation. The CDWs sought “the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days’ worth of the historical communications.”  Facebook provided all of the historical communications requested but moved to quash the CDWs to the extent they sought the contents of prospective electronic communications, contending that a wiretap order was needed to obtain those communications. (A wiretap order requires law enforcement to satisfy a significantly greater burden to be issued as compared to what must demonstrated to obtain a CDW.)

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