Obtaining Social Media Data
October 13, 2023 - Posted by Ed Esposito
In a recent New Jersey Supreme Court decision, Facebook, Inc. v. State (A-61-21; A-7-22), the Court considered whether Facebook could be compelled to provide the contents of a user’s account every 15 minutes for 30 days based on a Communications Data Warrant (CDW) issued on a showing of probable cause. The case was based on two unrelated investigations by two different law enforcement agencies that were both seeking to obtain information from the social media accounts belonging to the targets of their investigation into gang- and drug-related offenses. The CDWs sought the names, addresses, phone numbers, and email addresses associated with the accounts. In addition, the police were seeking the contents of stored electronic communications, which included real time access to email with attachments, whether opened or unopened; private messaging content; and real time access to media uploaded to the accounts, including images, videos, audio files, and the contents of private messages in all message folders.
The warrants instructed Facebook to reveal both historical and future communications. However, Facebook only turned over the historical records and moved to quash the part of the CDWs that required them to provide the contents of all future communications – every 15 minutes over the next 30 days. The 15-minute gap was due to technical limitations since this was the quickest Facebook could provide the information as it is not readily available to be disclosed in “real time.” Facebook argued that nowhere else in the United States has law enforcement sought prospective communications from their users’ accounts without presenting a wiretap order. However, the State argued they did not need a wiretap order since they were seeking “stored communications” due to the 15-minute delay.
The State contended that “the pivotal question is whether communications are acquired “in flight” -- contemporaneous with their transmission -- or from storage.” Ibid. Although the communications sought by the State were briefly stored as electronic communications before they were able to be forwarded, the 15-minute delay is “as near to real time as technologically possible” according to Facebook’s argument. Ibid.
The Court ruled that the “the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.” Ibid. Accordingly, the Court’s decision states, “attempts to acquire electronic communications every 15 minutes, for 30 days into the future, are not covered by New Jersey’s equivalent of the Stored Communications Act. We find they are instead subject to the requirements of the State Wiretap Act.” Ibid.
Although a CDW is essentially the equivalent of a search warrant issued based on probable cause, it is not subject to the more restrictive procedures and enhanced protections of New Jersey’s Wiretap Act. Although the Wiretap Act was enacted decades prior to social media, it is still what governs applications for a court order that authorizes law enforcement officers to intercept wire, electronic, and oral communications. Unlike a CDW application, wiretap applications must include a particular statement of facts showing that other normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. Wiretap orders must contain strict procedures (extrinsic and intrinsic) to minimize or eliminate the interception of communications not otherwise subject to interception.
Extrinsic minimization refers to limiting the hours and total duration of interception while intrinsic minimization is required on a call-by-call basis. The police must make reasonable efforts to terminate the interception of individual communications as it becomes apparent that they are not relevant to the investigation. Steps must also be taken by the police to minimize the interception of privileged communications. For example, the monitoring of communications must end immediately once the parties have been identified and the communication between them is determined not to be pertinent or if it is privileged communication (i.e. Communications between husband-wife, attorney-client and doctor-patient.).
The Wiretap Act limits the length of an order to be only as long as necessary to achieve their objective or a maximum of 20 days. However, extensions or renewals of the order can be granted for two additional periods of up to 10 days. The Act also contains a reporting requirement that allows for judicial oversight of wiretap interceptions. Even after a wiretap order is granted, the court is authorized under the Act to require prosecutors to show what progress has been made toward achievement of the authorized objective and the need for continued interception.
In a recent New Jersey Supreme Court decision, Facebook, Inc. v. State (A-61-21; A-7-22), the Court considered whether Facebook could be compelled to provide the contents of a user’s account every 15 minutes for 30 days based on a Communications Data Warrant (CDW) issued on a showing of probable cause. The case was based on two unrelated investigations by two different law enforcement agencies that were both seeking to obtain information from the social media accounts belonging to the targets of their investigation into gang- and drug-related offenses. The CDWs sought the names, addresses, phone numbers, and email addresses associated with the accounts. In addition, the police were seeking the contents of stored electronic communications, which included real time access to email with attachments, whether opened or unopened; private messaging content; and real time access to media uploaded to the accounts, including images, videos, audio files, and the contents of private messages in all message folders.
The warrants instructed Facebook to reveal both historical and future communications. However, Facebook only turned over the historical records and moved to quash the part of the CDWs that required them to provide the contents of all future communications – every 15 minutes over the next 30 days. The 15-minute gap was due to technical limitations since this was the quickest Facebook could provide the information as it is not readily available to be disclosed in “real time.” Facebook argued that nowhere else in the United States has law enforcement sought prospective communications from their users’ accounts without presenting a wiretap order. However, the State argued they did not need a wiretap order since they were seeking “stored communications” due to the 15-minute delay.
The State contended that “the pivotal question is whether communications are acquired “in flight” -- contemporaneous with their transmission -- or from storage.” Ibid. Although the communications sought by the State were briefly stored as electronic communications before they were able to be forwarded, the 15-minute delay is “as near to real time as technologically possible” according to Facebook’s argument. Ibid.
The Court ruled that the “the nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.” Ibid. Accordingly, the Court’s decision states, “attempts to acquire electronic communications every 15 minutes, for 30 days into the future, are not covered by New Jersey’s equivalent of the Stored Communications Act. We find they are instead subject to the requirements of the State Wiretap Act.” Ibid.
Although a CDW is essentially the equivalent of a search warrant issued based on probable cause, it is not subject to the more restrictive procedures and enhanced protections of New Jersey’s Wiretap Act. Although the Wiretap Act was enacted decades prior to social media, it is still what governs applications for a court order that authorizes law enforcement officers to intercept wire, electronic, and oral communications. Unlike a CDW application, wiretap applications must include a particular statement of facts showing that other normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. Wiretap orders must contain strict procedures (extrinsic and intrinsic) to minimize or eliminate the interception of communications not otherwise subject to interception.
Extrinsic minimization refers to limiting the hours and total duration of interception while intrinsic minimization is required on a call-by-call basis. The police must make reasonable efforts to terminate the interception of individual communications as it becomes apparent that they are not relevant to the investigation. Steps must also be taken by the police to minimize the interception of privileged communications. For example, the monitoring of communications must end immediately once the parties have been identified and the communication between them is determined not to be pertinent or if it is privileged communication (i.e. Communications between husband-wife, attorney-client and doctor-patient.).
The Wiretap Act limits the length of an order to be only as long as necessary to achieve their objective or a maximum of 20 days. However, extensions or renewals of the order can be granted for two additional periods of up to 10 days. The Act also contains a reporting requirement that allows for judicial oversight of wiretap interceptions. Even after a wiretap order is granted, the court is authorized under the Act to require prosecutors to show what progress has been made toward achievement of the authorized objective and the need for continued interception.