A Communication Data Warrant or Wiretap Order – Which is needed for Law Enforcement to Obtain ESI from Facebook?

Digital FingerprintIn 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.)

The court ruled that a CDW, not a wiretap order, was required to obtain the information sought from Facebook. The Appellate Division based its holding on the nature of the information being secured. The court explained that a wiretap order is needed to intercept “a communication contemporaneous with the transmission.” By contrast, a CDW seeks the “acquisition of communications in post-transmission electronic storage.” The CDSs at issue here did not contemplate the acquisition of communications contemporaneous with their transmission. Rather, the State only sought access to electronic communications already in “electronic storage” on Facebook’s servers as well as those which would be stored there. Thus, the State was not seeking access to the communications until after they were placed on Facebook’s servers.

In closing its opinion, the Appellate Division suggested that the case was a good example of showing that the law is evolving in response to changing technology and stored electronic information.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

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  1. Pingback: Wiretap Order, not a Search Warrant, Needed to Obtain Certain Information from Facebook | Trending Law Blog

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