This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
The New Jersey State Bar Association is seeking leave to participate in a matter before the state Supreme Court.
Facebook v. State of New Jersey
In a case of first impression for the Supreme Court, the NJSBA seeks amicus to analyze the proper support for a warrant to access Facebook Messenger or other similar electronic communications on a near-contemporaneous basis. In such cases where the communications sought are prospective in nature, the Association is advocating for a heightened showing similar to what is required for a wiretap order before the issuance of a warrant to capture such messages.
In this matter, the state sought messenger exchanges every 15 minutes in a 30-day period, begging the question of whether such communications were truly an “intercept” as would be in a wiretap. The Association urges the Court to consider a “hybrid” analysis between a communications data warrant (CDW) and a wiretap order because, at the time the warrant is requested, the communication does not neatly fall into a category of either a stored communication, triggering a CDW, or an intercepted communication, triggering a wiretap order.
“[B]ecause law enforcement seeks prospective electronic communication on a near-contemporaneous basis, the request falls in an undefined middle ground of the statutory schemes, neither of which are equipped to squarely address the various technological advancements at issue here,” says the NJSBA brief. “Nonetheless, the prospective communication sought in this instance is a private communication that is protected by both the U.S. and N.J. constitutions and in which our state’s citizens have an expectation of privacy. As such, it is deserving of protective action by the Court.”
NJSBA Trustee Brian Neary, James Maynard, NJSBA Past President Robert Hille, Matheu Nunn and Holly Maynard wrote the brief.