In Brief

Authorities don’t need wiretap order to get some Facebook messages, court rules

By: - April 7, 2022 6:54 am

The decision will allow law enforcemet to use data commnications warrants — easier to obtain that wiretap orders — to compel social media companies to produce private data. (Photo by Alexander Koerner/Getty Images)

An appellate panel ruled this week authorities do not need a wiretap order to obtain some Facebook messages and communications, overturning the rulings of two lower court judges.

But the court handed the social media giant a limited win after it found warrants drafted in two drug cases failed to comply with time restrictions imposed by the state. The 30-day warrants obtained in these cases were good for only 10 days after they were drafted, the three-judge panel ruled Monday.

The decision will allow law enforcement to continue to use data communications warrants — easier to obtain than wiretap orders — to compel social media companies to produce private data. It echoes a similar ruling in a case between Essex County Prosecutor’s Office and Facebook in 2017.

In two separate cases — one in Mercer County and the other in Atlantic County — law enforcement officials obtained communication data warrants that required Facebook to divulge messages and other data from two accounts authorities allege were used to coordinate drug and gang crime.

Those warrants called for the release of 74 and 63 days of communications in the Atlantic and Mercer cases, respectively. They required Facebook to continue to release comments, posts, messages, images, and other data made by the accounts for 30 days after the warrants were issued.

Facebook moved to quash the portion of the warrants that required the company to divulge communications made after the warrants were issued, successfully arguing at the trial level that such releases require a wiretap order.

Because wiretaps allow law enforcement to surveil conversations in real time, the process for obtaining a wiretap order is more stringent than the one for obtaining a communications data warrant. A request for a wiretap includes, among other things, an attestation that normal investigative procedures have failed, are likely to fail, or are too dangerous to attempt.

To obtain a communications data warrant, law enforcement must show only probable cause. These warrants can also be issued for any investigation, while wiretaps are obtainable for investigations involving a limited set of crimes.

On appeal, attorneys for the state argued the release of future communications made by the defendants were not intercepts because they would be divulged at 15-minute intervals and not in real time.

The appellate panel agreed, leaning on a lengthy history of state and federal decisions that found wiretap laws do not apply to digital communications seized after they reach their intended recipients.

However, the judges found the 30 days of prospective seizures called for by the warrants were out of sync with state warrant procedures that require search warrants to be executed within 10 days of being issued.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics. Please see our republishing guidelines for use of photos and graphics.

Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.