154 A.3d 169
N.J. Super. Ct. App. Div.2017Background
- The State sought two communications data warrants (CDWs) under N.J.S.A. 2A:156A-29 to obtain extensive data and the contents (including videos) of two private Twitter accounts.
- The Law Division judge issued the CDWs but redacted them to exclude the audio (aural/oral) components of any videos, concluding the Act applied to audio portions and required greater protection.
- The State appealed; the Appellate Division granted leave and heard amicus briefing addressing statutory interpretation questions.
- Central statutory framework: New Jersey Wiretapping and Electronic Surveillance Control Act (the Act) defines "wire," "electronic," and "oral" communications and criminalizes unlawful interception; CDWs permit access to contents in electronic storage upon probable cause.
- Key legal question: whether videos (and their audio tracks) stored on Twitter are "electronic communications" in "electronic storage" (accessible by CDW) or "wire/oral communications" requiring a wiretap order to intercept.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Amicus) | Held |
|---|---|---|---|
| Are Twitter postings (videos + audio) "electronic communications" under the Act? | Tweets and stored videos are electronic communications; their audio does not convert them into wire/oral communications. | Presence of human voice/aural component makes them wire communications or oral communications requiring higher protection. | Held: Twitter postings (including video/audio) are "electronic communications." |
| Is accessing stored Twitter videos an "interception" that requires a wiretap order? | Accessing communications already in "electronic storage" is not an interception; a CDW suffices if probable cause is shown. | Even if in storage, audio (as aural/wire communication) still requires a wiretap order. | Held: Acquisition from electronic storage is not an "interception" under the Act; CDW is appropriate. |
| Are audio portions of posted videos "oral communications" as defined by the Act? | No; posted videos held by a service are not "oral communications" in the statutory sense. | Audio recordings of contemporaneous conversations could be "oral communications" and trigger Title III protections. | Held: The posted videos are not oral communications per the Act; audio tracks do not automatically become separate oral communications requiring a wiretap order. |
| Should the judge’s redactions excluding audio be upheld? | State: redactions unnecessary; full contents reachable via CDW. | Amicus: redactions proper because audio requires wiretap protections. | Held: Reversed — remand for CDWs without the audio-only redactions. |
Key Cases Cited
- State v. Diaz, 308 N.J. Super. 504 (App. Div.) (discussing treatment of videotaped recordings and audio components under the Act)
- State v. Ates, 217 N.J. 253 (2014) (explaining statutory wiretap scheme and probable-cause/minimization requirements)
- United States v. Councilman, 418 F.3d 67 (1st Cir.) (on relationship between "electronic storage" and wire communications)
- Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.) (holding private websites are electronic communications)
- DIRECTV, Inc. v. Pepe, 431 F.3d 162 (3d Cir.) (treating satellite transmissions with audio as electronic communications)
- Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (5th Cir.) (discussing that 'intercept' does not apply to electronic communications in electronic storage)
- State v. Finesmith, 408 N.J. Super. 206 (App. Div.) (CDW standard vs. wiretap order distinctions)
- Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659 (D.N.J.) (social media posts are electronic communications)