Wiretap Order, not a Search Warrant, Needed to Obtain Certain Information from Facebook

The April 18, 2022 Trending Law Blog post discussed how, in Facebook, Inc. v. State of New Jersey, the New Jersey Appellate Division held that a communications data warrant, rather than a wiretap order, was required for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation.

In a June 29, 2023 decision, however, the Supreme Court of New Jersey unanimously reversed the determination of the Appellate Division.

The Supreme Court found that to obtain a search warrant, the State ordinarily has to demonstrate there is probable cause to believe evidence of a crime will be found at a particular place. However, the Court concluded that gaining access to private communications in real time was “considerably more intrusive than a typical search” and, in those instances, “the State must satisfy certain heightened requirements and apply for a wiretap order, which requires an enhanced showing – one beyond probable cause.”  In reaching its decision, the Supreme Court found that the nearly contemporaneous acquisition of electronic communications from Facebook was “the functional equivalent of wiretap surveillance” and, therefore was entitled to greater constitutional protections to safeguard individual privacy rights.

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