Law Lessons from In the Matter of the Application of the State of New Jersey for Communications Data Warrants to Obtain the Contents of Stored Communications From Twitter, Inc., From Users @____ And @____, Ess-147-Cdw-16 and Ess-148-Cdw-16, __ N.J. Super. __ (App. Div. 2017), Docket No. A-3651-15T4, February 2, 2017:
This appeal presents an issue involving the Wiretapping and Electronic Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to-37. The State of New Jersey sought two communications data warrants (CDWs), N.J.S.A. 2A:156A-29(a), to obtain from Twitter, Inc., an extensive list of information and data associated with two specific Twitter accounts (the accounts), as well as the contents of those accounts. [“Twitter is self-described `as an information network made up of 140-character messages called Tweets.'” State v. Hannah, ___ N.J. Super. ___, ___ n.1 (App. Div. 2016) (quoting In re J.F., 446 N.J. Super. 39, 44 n.7 (App. Div. 2016)). “People post Tweets, which may contain photos, videos, links and up to 140 characters of text. These messages are posted to [the person’s] profile, sent to [his or her] followers, and are searchable on Twitter search.” New User FAQs, Twitter, Inc., https://support.twitter.com/articles/13920# (last visited Jan. 3, 2017). Tweets may be “public” or “protected,” and when an individual subscribes to Twitter, his or her tweets are public by default. “About public and protected Tweets,” Twitter, https://support.twitter.com/articles/14016#. If a user changes the default settings to maintain privacy, the public may not simply access the Tweets unless the user consciously accepts the request. “FAQs about following,” Twitter, https://support.twitter.com/articles/14019#. For our purposes, we assume the account holders in this case changed their default settings to maintain privacy over the contents of their Tweets, and therefore they are not accessible without judicial intervention. See N.J.S.A. 2A:156A-4(c) (permitting interception of wire, electronic and oral communications when one party has given prior consent), and (e) (permitting the interception or access of electronic communications where they are “readily accessible to the general public”).]
A “wire communication” is
any aural transfer made . . . through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate or foreign communication.
The Legislature’s 1993 amendments to the Act substituted the term “aural transfer,” now defined as “a transfer containing the human voice at any point between and including the point of origin and the point of reception[,]” N.J.S.A. 2A:156A-2(t), for the term “communication.” L. 1993, c. 29 §§ 1-29 (the Amendment).[The 1993 amendments were identical to amendments Congress made to the Act’s federal counterpart, Title III of the federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520 (Title III), by enacting the Electronic Communications Privacy Act of 1986 (ECPA), Title II of which is known as the Stored Communications Act. White v. White, 344 N.J. Super. 211, 218-19 (Ch. Div. 2001).] The Amendment also provided that a “[w]ire communication includes any electronic storage of such communication . . . .” N.J.S.A. 2A:156A-2(a) (emphasis added). The Act defines an “oral communication” as “any .. . utter[ance] by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. . . .” N.J.S.A. 2A:156A-2(b).
The Amendment also added several terms which we must consider. An “[e]lectronic communication,” as distinguished from a “wire communication” or “oral communication,” is defined as
any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system that affects interstate, intrastate or foreign commerce, but does not include:
(1) Any wire or oral communication. . . .
See State v. Gaikwad, 349 N.J. Super. 62, 77 (App. Div. 2002) (noting that in conjunction, the definitions of wire and electronic communications make “clear . . . the Legislature intended to cover the wide spectrum of potential communications made possible through technological advances”). The Amendment made both wire and electronic communications, but not oral communications, subject to “[e]lectronic storage,” defined as “[a]ny temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof[,] and [a]ny storage of such communication by an electronic communication service for purpose of backup protection of the communication. . . .” N.J.S.A. 2A:156A-2(q).
Among other things, the Act makes it illegal for anyone to “[p]urposely intercept . . . any wire, electronic or oral communication. . . .” N.J.S.A. 2A:156A-3(a) (emphasis added); see also State v. Ates, 217 N.J. 253, 266 (explaining the statutory scheme), cert. denied sub nom., Ates v. New Jersey, ___ U.S. ___, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014). “`Intercept’ means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device[,]” meaning “any device or apparatus . . . that can be used to intercept a wire, electronic or oral communication. . . .” N.J.S.A. 2A:156A-2(c) and (d).
The State may apply ex parte to designated judges for “an order authorizing the interception of a wire, or electronic or oral communication . . . when such interception may provide evidence of the commission of” certain enumerated crimes. N.J.S.A. 2A:156A-8 (emphasis added). However, the State must shoulder a heavy burden before it may “intercept” a communication:
In part, the judge must find probable cause to believe that
a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an [enumerated] offense . . .;
b. Particular communications concerning such offense may be obtained through such interception; [and]
c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.
[Ates, supra, 217 N.J. at 266-267 (alterations in original) (quoting N.J.S.A. 2A:156A-10(a)-(c)).]
The Amendment also created a new crime under the Act. N.J.S.A. 2A:156A-27 makes it unlawful to “knowingly . . . obtain . . . access to a wire or electronic communication while that communication is in electronic storage.” With limited exceptions, an electronic communication service[An “`[e]lectronic communication service’ means any service which provides to the users . . . the ability to send or receive wire or electronic communications. . . .” N.J.S.A. 2A:156A-2(p).] “shall not knowingly divulge . . . the contents of a communication while in electronic storage. . . .” N.J.S.A. 2A:156A-28(a)(1).
One such exception permits disclosure to law enforcement “of the contents of an electronic communication,” but not a wire communication, “without notice to the subscriber . . . if the law enforcement agency obtains a warrant[,]” i.e., a CDW. N.J.S.A. 2A:156A-29(a).[The Act requires a lesser standard for access to “a record, the location information for a subscriber’s or customer’s mobile or wireless communications device, or other information pertaining to a subscriber or customer of the service,” and not the contents of an electronic communication. N.J.S.A. 2A:156A-29(c). In those circumstances, the judge “shall issue” an “order for disclosure” “if the law enforcement agency offers specific and articulable facts showing that there are reasonable grounds to believe that the record or other information . . . is relevant and material to an ongoing criminal investigation.” N.J.S.A. 2A:156A-29(e). The Appellate Division has previously held
a CDW is not subject to the more restrictive procedures and enhanced protections of the. . . Act, which include a showing of necessity because normal investigative procedures have failed, N.J.S.A. 2A:156A-10. By contrast, N.J.S.A. 2A:156A-29(a) requires only that a law enforcement agency obtain a warrant upon a showing of probable cause.
[State v. Finesmith, 408 N.J. Super. 206, 212 (App. Div. 2009).]
Additionally, unlike a wiretap order which may only be issued to intercept evidence of the commission of certain crimes, N.J.S.A. 2A:156A-8, a CDW may be obtained without regard to the nature of the crime being investigated.
Federal precedent makes clear that “oral communications” are “narrowly defined as a nonelectronic `oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.'” In re High Fructose Corn Syrup Antitrust Litig., Delwood Farms, Inc., 216 F.3d 621, 622-23 (7th Cir. 2000) (emphasis added) (quoting 18 U.S.C.A. § 2510(2)); see also Huff v. Spaw, 794 F.3d 543, 548-54 (6th Cir. 2015) (holding communications were “oral” where the plaintiff unknowingly “pocket-dialed” the defendant on his cell phone, and the defendant heard and recorded face-to-face conversations between the plaintiff and others); United States v. King, 335 F. Supp. 523, 548 (S.D. Cal. 1971), remanded in part on other grounds, 478 F.2d 494 (9th Cir. 1973) (in-person, background conversations overheard via wiretap were “oral communications” and not within the scope of a wiretap order authorizing interception of wire communications); Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264, 1279 (2005) (explaining “if the police attempted to place a bug in one’s home to record one’s dinnertime conversations, this would be an interception of oral communication”). This narrow interpretation of an “oral communication” finds support in the legislative history of the Act’s federal counterpart. See S. Rep. No. 99-541, 99th Cong. 2d Sess., at 13 (1986) (“In essence, an oral communication is one carried by sound waves, not by an electronic medium.”).
A posted video held by Twitter is not itself an oral communication as defined by the Act, nor is its audio portion a separate “oral communication” that must be segregated from the video portion and only obtained by issuance of a wiretap order.
Interception, as defined by the Act and the federal act, contemplates the acquisition of the communication contemporaneously with its transmission. Luis v. Zang, 833 F.3d 619, 629 (6th Cir. 2016); accord Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113-14 (3d Cir. 2003), as amended (Jan. 20, 2004); United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Konop, supra, 302 F.3d at 878; Ehling, supra, 872 F. Supp. 2d at 371-72; Finesmith, supra, 408 N.J. Super. at 212. But see Councilman, supra, 418 F.3d at 80 (expressing doubt as to the contemporaneity requirement). In this case, the State does not seek to access the electronic communications in transmission. Rather, the State seeks to access the electronic communications already in “electronic storage” on Twitter’s servers. See Steve Jackson Games, Inc., supra, 36 F.3d at 462 (“Congress did not intend for `intercept’ to apply to `electronic communications’ when those communications are in `electronic storage.'”).
The audio portions of the videos and video messages held in the accounts by Twitter are “electronic communications” under the Act, in electronic storage and accessible to the State through the CDWs issued by the Law Division judge.
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