Currently, courts can issue warrants to obtain social media information through Communication Data Warrants. The ubiquity of social media has led to New Jersey courts allowing the prosecution to gather information about defendants through social media. Communication Data Warrants can be used to gather information against defendants as well as when police want access to the contents of digital communications. Just how far do these new stipulations go, and what are your rights today? Read this blog post to find out, and contact an experienced Bergen County criminal defense lawyer immediately if you’ve been accused of a crime.
Privacy as a Fundamental Right in the United States
Privacy as traditionally conceived is a fundamental right which the Supreme Court has protected in cases like Berger v. United States 288 U.S. 21 (1967). In Berger, the court held that a statute allowing the police to wiretap and bug people’s homes and offices was unconstitutional. This was both because of the unduly wide discretion it gave the police, as well as because of the contradictorily secretive quality of wiretaps being used through a search warrant when warrants are supposed to notify the subject about the police search.
Subsequently, Congress concretized Berger through the passage of the Wiretap Act and the Electronic Communications Act of 1986. The majority of state legislatures, including New Jersey, passed similar state-level laws to ensure the protection of people’s Fourth Amendment rights against unreasonable searches and seizures.
Facebook v. State of New Jersey
Privacy rights came up again in Facebook v. State of New Jersey (A-3350-20, A-0119-21), which consolidated two cases of similar CDWs requested from Facebook in 2021. Police had probable cause regarding drug distribution crimes and wanted Facebook to provide a large variety of different communications, from images to videos to histories and comments, as well as the contents of private messages. They even went so far as to request real-time access to communications through the use of phantom duplicate accounts controlled by the police themselves.
Facebook initially complied in part, did not allow access to prospective digital communications, known as future stored information. Similarly, the trial judge in both cases restricted the CDWs from including prospective communications on the grounds that this much information was tantamount to wiretapping, which would require a separate wiretapping order instead of a regular search warrant.
The Appellate Division, however, reversed these decisions. The court acknowledged that a wiretap order was necessary to “intercept” communications, but disagreed that post-transmitted data stored on Facebook servers met the simultaneity requirement for “intercepting” communications.
