N.J. Supreme Court sides with Facebook in landmark ruling

The New Jersey Supreme Court sided with Facebook in a major court decision that requires prosecutors to get a wiretap order if they want to eavesdrop on social media accounts without adequate evidence of a crime.

In a unanimous decision, Chief Justice Stuart Rabner wrote that the state attorney general’s office can’t require Facebook to “provide prospective electronic communications” under a search warrant.

“To conduct a search, the state ordinarily must demonstrate there is probable cause to believe evidence of a crime will be found at a particular place and must obtain a warrant. Gaining access to private communications in real-time, however, is considerably more intrusive than a typical search,” the court stated in its decision.  “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.”

Instead, prosecutors will need to get a judge to sign a wiretap order, something that requires a tougher set of standards, instead of using a communications data warrant (CDW).

“Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order,” Rabner wrote.  “Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order.

The attorney general’s office sought to compel Facebook to provide content from two users’ accounts every fifteen minutes for thirty days.

Facebook argued that federal and state laws never authorized the use of a search warrant to compel disclosure of prospective communications. Facebook instead maintains that the enhanced privacy protections of the wiretap acts govern the challenged searches.

In friend of the court filings, Microsoft and Google said law enforcement made more than 140,999 requests for user data in 2021, but just sixteen were for “ongoing, prospective surveillance of electronic communications.”

The issue started in 2021 when the New Jersey State Police was investigating drug offenses.

The decision was 5-0; Justice Douglas Fasciale and Judge Jack Sabatino, serving on an interim basis, did not participate.