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 @ [REDACTED] AND @ [REDACTED], ESS-147-CDW-16 AND ESS-148-CDW-16.
DOCKET NO. A-3651-15T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
February 2, 2017
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION February 2, 2017 APPELLATE DIVISION
Argued December 13, 2016 – Decided February 2, 2017
Before Judges Messano, Guadagno and Suter.
Camila A. Garces, Special Deputy Attorney General/Acting Assistant Prosecutor and Kayla Elizabeth Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Garces, of counsel and on the brief).
Lawrence S. Lustberg, amicus curiae, argued the cause (Gibbons, P.C., attorneys; Mr. Lustberg and Avram D. Frey, on the brief).
The opinion of the court was delivered by
MESSANO, P.J.A.D.
This appeal presents an issue of first impression involving the Wiretapping and Electronic Surveillance Control Act (the Act),
The type of application (Wiretap Order or CDW) to search a cellular phone depends upon the phone‘s capabilities. Some phones have the capability only to take pictures and other [sic] can record rolling video with audio.
a. Current Law
The current state of the law is that the audio portion of a video camera or video tape falls within the Wiretap Act as an oral communication. State v. Diaz, 308 N.J. Super. 504, 512 (App. Div. 1998). However, the Wiretap Act does not apply to silent video surveillance or the video portion of a videotape. Kinsella v. Welch, 362 N.J. Super. 143, 158 (App. Div. 2003). Therefore, a search for a video (without audio) or a picture (without audio) in a cellular phone would require a CDW. If there is an audio portion, a Wiretap Order is necessary.
[Id. at 72 (emphasis added).]
Recognizing these secondary sources were “not precedent” and relying on Diaz, the judge concluded “the . . . Act applied to the State‘s application to intercept the aural, oral, or audio component of a video.”
Given the ex parte nature of the State‘s applications and the need to maintain confidentiality as to the identity of the account holders, we requested amicus curiae address the issues presented for the benefit of the panel. We thank amicus for its participation in this appeal.
I.
Amicus stressed during oral argument, and we agree, the issue is largely one of statutory interpretation. As a result, we start at the beginning, with the Act‘s definitions.
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[,]”
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 . . . .”
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 . . . .
[
N.J.S.A. 2A:156A-2(m)(1) (emphasis added).]
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 . . . .”
Among other things, the Act makes it illegal for anyone to “[p]urposely intercept[] . . . any wire, electronic or oral communication . . . .”
“‘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 . . . .”
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.
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
[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.
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.
[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,
The State argues that since the judge found sufficient probable cause for the issuance of a CDW, it was entitled to obtain all requested data stored by Twitter on behalf of the accounts, because that data, including the audio contents of any video, consisted of “electronic communications.” Concomitantly, the State contends the data was held in post-transmittal “electronic storage” and not subject to interception, as defined by the Act. The State urges us to vacate the redactions and limitations entered by the judge on the CDWs.
Amicus suggests we affirm the CDWs as issued, albeit for reasons other than those expressed by the judge. See, e.g., Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (“[I]t is well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion.“). It contends that the audio portions of the data were “wire communications” in “electronic storage,” and the State‘s acquisition of the audio components of any video would constitute an “interception” under the Act. As a result, amicus submits a wiretap order was required, and
We have considered the arguments raised in light of the record and applicable legal standards. We reverse.
II.
A.
“In construing the meaning of a statute, our review is de novo.” State v. Goodwin, 224 N.J. 102, 110 (2016) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Our “goal . . . is to give effect to the intent of the Legislature.” State v. Morrison, 227 N.J. 295, 308 (2016) (quoting Maeker v. Ross, 219 N.J. 565, 575 (2014)). We first look at the statute‘s language, giving the words their plain meaning and enforcing the statute as written. State v. Grate, 220 N.J. 317, 330 (2015) (citing State v. Drury, 190 N.J. 197, 209 (2007)). However,
[i]f the language is ambiguous or “admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature‘s intent.” Such extrinsic sources, in general, may include the statute‘s purpose, to the extent that it is known, and the relevant legislative history.
[Drury, supra, 190 N.J. at 209 (quoting State v. Reiner, 180 N.J. 307, 311 (2004)).]
Additionally, “[w]hen reviewing related statutory provisions we generally consider them in pari materia, harmonizing their meaning with the Legislature‘s intent.” In re G.C., 179 N.J. 475, 481-82 (2004) (citing State v. Green, 62 N.J. 547, 554-56 (1973)).
Lastly, the Act was modeled after Title III of the federal Omnibus Crime Control and Safe Streets Act,
B.
As an initial matter, the videos posted on the accounts were not “oral communications”
admissibility of a videotape, which include[d] a sound recording, made by parents in their own home of the conduct of their child‘s daytime ‘nanny.‘” After reviewing federal precedent, we concluded that the “Act was not intended to apply to a recorded silent video surveillance or the video portion of a videotape which includes a sound component.” Id. at 512. However, we expressly did not consider the admissibility of the “audio portion” of the recording that included the defendant‘s phone conversations with others not seen on the videotape. Id. at 512-13. We also concluded that the defendant‘s statements to the child captured on the video were admissible under the theory of “vicarious consent.” Id. at 516.
We agree with Diaz to the extent it implied audio portions of surreptitiously-recorded videos may be “oral communications” subject to the Act. However, 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., 216 F.3d 621, 622-23 (7th Cir. 2000) (emphasis added) (quoting
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.“).
We have no idea what the audio portions of any videos or video messages posted on the accounts in this case might contain. If, for example, a posted video included the contemporaneous recording of a conversation, that recording might well be considered an interception of an oral communication subject to the Act. See id. at 17 (indicating
Title III would apply to the “interception of the audio portion of a [videotaped] meeting“). However, we are firmly convinced that 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.
In this regard, we liken the situation to those numerous cases that have held satellite television transmissions that contain the aural transfer of sounds, including, presumably the human voice, do not lose
Rather, we must decide whether videos and video messages held in Twitter accounts are “electronic communications,” which may be accessed with a CDW when held in storage, or, as amicus urges, “wire communications,” the interception of which, even when held in storage, requires a wiretap order.9 Amicus properly points to the blurring of any distinction between the definitions of the two types of communications, since a “wire communication” means any “aural transfer made in whole or in part . . . by the aid of a wire . . . or other like connection[,]”
and “famous (if not infamous) for its lack of clarity“) (citations omitted).
Whether the particular communication contains the human voice is not dispositive of whether it is a “wire” or “electronic communication,” and, to the extent amicus urges that the presence of audio on these Twitter videos means they are wire communications, we reject the contention. As originally drafted, the ECPA intended to “substitute[] the phrase ‘electronic communication’ for ‘wire communication’ throughout the Act, and subsum[e] wire communications within the newly-defined term ‘electronic communication.‘” Councilman, supra, 418 F.3d at 76. However, as enacted, the ECPA added the term “electronic communication” to the existing term “wire communication,” and, as we already noted, the Amendment made similar changes in the Act. Nevertheless,
Congress intended to give the term “electronic communication” a broad definition:
The term ‘electronic communication’ is intended to cover a broad range of communication activities. . . . As a rule, a communication is an electronic communication if it is neither carried by sound waves nor can fairly be characterized as one containing the human voice (carried in part by wire). Communications consisting solely
of data, for example . . . would be electronic communications.
[Id. at 77 (quoting H.R. Rep. No. 99-647 at 35 (1986)).]
Despite these seeming limitations on the term, the Senate report included “video teleconferences” as an example of electronic communications. S. Rep. No. 99-541, supra, at 14. In enacting the Amendment, our Legislature clearly contemplated “electronic communications” could include the human voice, stating the term included “digital or voice transmissions to a beeper, a pager, fax machines, electronic mail service and computers.” Assembly Judiciary, Law and Public Safety Comm., Statement to A. Nos. 130 and 1587 (Sept. 21, 1992) (emphasis added).
Courts have expressed frustration with the failure to update the federal statute to keep pace with the advent of the Internet and social media platforms like Twitter. See, e.g., Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 666 n.2 (D.N.J. 2013) (“Most courts, including this one, would prefer that Congress update the statute to take into account the invention of the Internet.“); Konop, supra, 302 F.3d at 874 (“[U]ntil Congress brings the laws . . . in line with modern technology, protection of the Internet . . . will remain a confusing and uncertain area of the law.“). However, courts have uniformly concluded that communications sent to social media platforms or even private websites are clearly “electronic communications” under the federal act. See Konop, supra, 302 F.3d at 876 (the plaintiff‘s private “website fits the definition of ‘electronic communication‘“); Ehling, supra, 961 F. Supp. 2d at 667 (“Facebook wall posts are electronic communications.“); In re Application of the United States, 830 F. Supp. 2d 114, 127-28 (E.D. Va. 2011) (reviewing statutory scheme as applied to an order for access to Twitter accounts); In re § 2703(d) Order, 787 F. Supp. 2d 430, 436 (E.D. Va. 2011) (same).
We conclude the Twitter postings are “electronic communications” as defined by
As a corollary, the State argues accessing Tweets in storage on Twitter‘s servers is not an “interception” under the Act. Amicus acknowledges the videos are in “storage,” but contends that the interception of a wire communication in storage still requires a wiretap order, not a CDW. Although we conclude the audio components of the videos stored by Twitter are part and parcel of electronic communications, not wire or oral communications, we must still address the issue, because the Act prohibits the interception of “electronic communications” without a wiretap order.
We agree with the State and the overwhelming federal precedent that holds 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.‘“).
We conclude 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. We therefore remand the matter to the Law Division for entry of CDWs that do not contain the edits and deletions limiting the State‘s access. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION