If It Quacks Like a Wiretap, It’s a Wiretap

The Center for Democracy & Technology (CDT), joined by EPIC and EFF, is pushing back on an attempt by the State of New Jersey to evade the stringent requirements for obtaining wiretapping orders. We filed an amicus brief with the Supreme Court of New Jersey arguing that the government cannot compel the disclosure of stored communications every 15 minutes for a 30-day period with a single warrant. Instead, it would have to meet the requirements of the federal and New Jersey wiretapping laws which contain protections that do not pertain to the compelled disclosure of stored communications content. The case is Facebook v. New Jersey.

In this consolidated case, New Jersey obtained warrants that would have compelled Facebook to repeatedly — 2,880 times — disclose the contents of certain of its users’ communications prospectively, even though the communications were not yet in existence. Normally, and particularly in the communications context, warrants give law enforcement permission to seize information that exists. 

If the seizure of communications content is to be prospective, the law provides the opportunity for law enforcement to make the seizure by obtaining a wiretapping order. Wiretapping orders for prospective communications are more difficult to obtain than are warrants for stored communications. While law enforcement has to prove probable cause for both types of legal process, wiretapping orders:

• Cannot be obtained unless a judge has determined that other investigative procedures that could be used to obtain the necessary information have been tried and have failed, or that they are unlikely to succeed or are too dangerous; 
• Impose minimization procedures that minimize out communications that are irrelevant to the investigation and that ensure that the collection of communications ends when the goal of the collection has been met; and 
• Cannot, in New Jersey, be obtained to investigate most crimes, and can be obtained only to investigate certain enumerated crimes.

None of these privacy protections apply when warrants, as opposed to wiretaps, are used. New Jersey is attempting to evade these requirements by seeking to compel Facebook to disclose user content from storage in 15-minute intervals. Indeed, the State’s legal argument suggests that it could evade these requirements even if the interval between each compelled disclosure from storage was 15 milliseconds instead of 15 minutes, thus effectively writing the enhanced protections for wiretapping out of the law altogether.

Our brief calls this out. It explains that since New Jersey is conducting surveillance that looks like a wiretap, operates like a wiretap, and seeks disclosures like those of a wiretap, it’s a wiretap. We ask that the Supreme Court of New Jersey guard the heightened protections attendant to wiretaps by rejecting the State’s attempt to evade them by compelling repeated disclosures of content with a single warrant.

Read the full brief here.