Communications Data Warrants and Social Media: Know Your Rights in New Jersey

The courts have the ability through warrants to obtain information from social media by a mechanism called the Communication Data Warrant (CDW). Do you use social media sites, such as Facebook, Instagram, Twitter, and Snapchat? With the strong emergence of social media in the last decade, the state of New Jersey began using social media sites to gather information on defendants in criminal cases. This is done through a communications data warrant, which the state uses to gather information against our clients. This information can be used by the state to prove their cases against our clients. CDWs are used when law enforcement wants to obtain contents of electronic communications, location data, and basic subscriber information.

Privacy is a fundamental right of citizens, and the courts enforce this. In 1967, the U.S. Supreme Court, in Berger v. United States, 388 U.S. 41 (1967), determined that a New York statute allowing police to wiretap phone lines and place “bugs” in people’s homes and offices was unconstitutional. The court held that this procedure gave police a wide discretion to listen to many conversations in which individuals may be innocent, and the secretive nature of the wiretaps was inconsistent with other search warrants, which notify the suspect of the police search. Congress reaffirmed this conclusion by passing the Wiretap Act and the Electronic Communications Privacy Act of 1986 to regulate how police may eavesdrop on citizens. Most state legislatures, including New Jersey, followed suit and passed nearly identical laws to protect the Fourth Amendment Rights of its citizens. If allowed on social media sites like Facebook, CDWs would permit a very invasive search procedure to occur within the state of New Jersey.

A case, Facebook, Inc. v. State of New Jersey (A-3350-20, A-0119-21), challenged a communications data warrant (CDW) procedure. In 2021, two consolidated cases requested similar CDWs directed at Facebook where authorities had probable cause regarding drug distribution offenses on separate Facebook users. Law enforcement requested to obtain images, videos, comments, posts, histories, and contents of private messages through the duration a thirty-day warrant order. The CDWs also demanded for real-time­ access to such communications via creating phantom duplicate accounts of the defendants to be controlled by investigating law authorities. Facebook partially complied with both CDWs, declining to issue any prospective electronic communications (future stored information). In both cases, the trial judge partially quashed the CDWs to the extent of disclosing the contents of prospective communications. The judges made this decision because they believed releasing this information is synonymous to electronic surveillance, thus necessitating a wiretap Order instead of a normal search warrant. A wiretap Order, in contrast from a CDW, satisfies a larger burden for law enforcement, where authorities record communications without the consent of the defendants.

In early 2022, this case was heard in the Appellate Division, which ruled by reversing the decision. The court emphasized that wiretap orders are only necessary when simultaneous transmission of information is obtained through interception. The CDWs in this case did not authorize the “interception” of communications, but sought post-transmitted data that was stored in Facebook’s servers. Therefore, the court held that only a CDW was required rather than a wiretap order.

In the summer of 2022, the New Jersey Supreme Court granted Facebook to appeal the Appellate Division’s decision on whether the state must obtain prospective electronic communications from a Facebook account via a CDW or a wiretap order. The Court also granted the State’s appeal whether a sufficient CDW must be limited to a ten-day time period. If the court allows a CDW to obtain communications on Facebook, New Jersey would be the only state in the country to permit this practice. For example, a CDW granted for a suspect’s Facebook profile would allow the state police to monitor the user’s messages every fifteen minutes for a period of thirty days without obtaining a wiretap order. This would widely expand the state police’s power to monitor the communications of New Jersey residents and further impact their privacy if they are subject to a criminal investigation.

Our offices have handled many cases involving CDW warrants and are familiar with what the State must provide to the Judge in order to get a CDW. If needed, our offices work with forensic experts to analyze the electronic information given to us. The Law Offices of Eric B. Morrell are committed to fighting for our clients’ rights and privacy. If the discovery you receive from the State contains CDWs, or you have a concern whether the State can use your social media against you, please contact our offices for a consultation.