An Important Wiretap Act Case Pending in the New Jersey Supreme Court
For decades, a major uncertainty about the scope of the Federal Wiretap Act has been how it applies to the repeated but discrete access that can often occur with electronic communications. Telephone wiretapping occurs in real time; the eavesdropper listens in. But electronic wiretapping can be periodic but discrete. An eavesdropper can access an account discretely but repeatedly over time. The question is, does the Wiretap Act, with its strong privacy protections, still apply?
Here’s how I phrased the question in the LaFave Criminal Procedure treatise, for which I have written the electronic surveillance chapter, Chapter 4:
[A]n acquisition occurs under the Wiretap Act only if the collection of the communication is ‘in flight’ in real-time, during prospective surveillance of an ongoing communication. Exactly what this means can be tricky in cases involving electronic communications, as electronic communications can be stored or transmitted for extremely short periods of time. The basic question is this: If a tool makes copies of a communication shortly after it arrives at its destination, is that acquisition contemporaneous with transmission or is it only after the transmission has been completed? Put another way, can surveillance circumvent the Wiretap Act by acquiring communications immediately after they have arrived at their destination? If an e-mail account is accessed once an hour, is that an intercept? What about one a minute, once a second, or once a milli-second?
2 Wayne LaFave et al, Crim. Proc. § 4.6(b).
I asked the same question in my computer crime law casebook:
[T]he Wiretap Act regulates prospective surveillance and not retrospective surveillance.
At the same time, the line between prospective surveillance and retrospective surveillance can become fuzzy. Imagine a government agent has access to a suspect’s e-mail account, and he can click a button and receive an update with all new incoming or outgoing messages. Is the access prospective or retrospective if the government agent clicks the button every hour? Every minute? Every second?
Orin Kerr, Computer Crime Law 667 (5th ed. 2022).
It turns out this hypothetical has turned into a real case, currently pending in the New Jersey Supreme Court, with oral argument scheduled for March 13. The question: Can the government avoid the Wiretap Act by getting access to an account every 15 minutes? New Jersey state prosecutors obtained Communications Data Warrants (CDWs) that required Facebook to hand over the contents of the suspects’ accounts every 15 minutes for 30 days. Facebook objected, saying that the orders violate the Wiretap Act.
The lower court opinion held that Facebook was required to comply with the CDWs because compliance was not an “intercept” under the Wiretap Act:
[T]he CDWs did not grant access to the contents of prospective communications on Anthony’s and Maurice’s Facebook accounts while they were either “en route,” or “within the same second,” that they were placed on Facebook’s servers. Rather, police would not have access until, at earliest, fifteen minutes after any electronic communication’s transmission. Though the CDWs compelled Facebook to disclose the entire stored contents of each target’s Facebook account for
Article from Reason.com
