In a landmark ruling, the New Jersey Supreme Court ruled today that law enforcement officials in the state need to obtain a wiretap if they want to monitor private social media accounts in a live, or nearly-live manner.
In their unanimous, 48-page decision, the Court determined that real-time surveillance of a person’s social media is the “functional equivalent” of tapping a phone.
The communication data warrants investigators had been using to force Facebook to hand over the keys to users’ pagers did not meet the “heightened” privacy rules such an intrusion requires, the court ruled.
“Nowhere else in the nation has law enforcement sought prospective communications from Facebook users’ accounts without presenting a wiretap order,” Chief Justice Stuart Rabner wrote.
“The nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection,” Rabner continued.
“New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution.”
The case stems from a 2021 drug investigation, during which the New Jersey State Police and Atlantic County Sheriff’s Office filed warrants asking social media giant Facebook to provide them with the contents of two accounts, whose owners were suspected of selling drug.
Investigators wanted Facebook to provide them with the records every 15 minutes, for a period of 30 days.
To gain access to someone’s private communications in real time, prosecutors must apply for a wiretap order, which requires more proof than just probable cause.
However, the State argued that the 15-minute delay exempted them from having to get a wiretap order for the accounts, since it was not live information and therefore filed for warrants, not wiretap orders.