Jurisprudence

New Jersey Just Made It a Lot Harder for Police to Snoop on Social Media

It is essential that real-time communications are afforded the highest level of protection from snooping eyes. Photo illustration by Slate. Photos by Getty Images Plus.

New Jersey is known for many things, from delicious bagels to the heated pork roll vs. Taylor ham debate, and a thousand pronunciations of words like coffee and water. But the Garden State deserves a new accolade: defender of digital privacy rights.

In an important decision that has seemingly flown under the radar, late last month the Supreme Court of New Jersey decided Facebook Inc. v. State,which puts much-needed guardrails on police conduct in the state when it comes to law enforcement’s access to digital communications. Up until this decision, it was permissible for New Jersey police to obtain a Facebook user’s private messages in near real time with a mere probable-cause warrant. However, case law and state and federal statutes rightly recognize that real-time access to private communications demands heightened privacy protections. This type of search would generally be considered a wiretap and require the police to apply for a wiretap order. Wiretap orders require an enhanced showing, one beyond probable cause, to be granted.

Much like many abusive law enforcement surveillance tactics, the police in this case attempted to exploit a pre-internet law that currently governs most online data. The Stored Communications Act, passed in 1986, authorizes government entities to mandate the disclosure of communications in “electronic storage” pursuant to a warrant or subpoena, depending on the length of time communications are in storage. Here, the police argued that since Facebook could disclose data only every 15 minutes—a technical limitation on the platform’s part—the data the police sought was technically in “electronic storage,” thus enabling acquisition with a standard warrant. However, the New Jersey Supreme Court rightly rejected this argument, holding that “the nearly contemporaneous acquisition of electronic communications … is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection.” Now police need a wiretap order, which carries with it heightened privacy protections, in order to conduct real-time surveillance of digital communications.

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While certainly a win for privacy advocates, this case reminds us of several important issues in the fight for privacy in the digital era. First, in an age in which increasingly personal information is shared via digital means, it is essential that real-time communications are afforded the highest level of protection from snooping eyes. One need not think hard to imagine a scenario wherein law enforcement in 1 of the 14 states where abortion is illegal engages in real-time surveillance tactics to monitor digital private conversations about abortion. Or take the increasingly common practice of social media surveillance, in which police unconstitutionally monitor the First Amendment–protected activities of activists and religious individuals. Practices like the one now illegal in New Jersey could enable real-time monitoring of activists’ digital communications during a protest.

Moreover, it is clear that pre-internet statutes and case law that govern online activity are woefully inadequate for the realities of the digital era. Many of these laws and cases are based on the U.S. Supreme Court’s 1979 ruling in Smith v. Maryland, which created the third-party doctrine and held that individuals have no reasonable expectation of privacy for information voluntarily turned over to a third party. This ruling is fundamentally incompatible with the realities of the internet and digital information. In the digital era, the third-party doctrine grants law enforcement easy access to nearly all information a user shares or stores on a social media platform or other digital entity, in some cases with little more than a subpoena or request. And the Stored Communications Act, also enacted in the ’80s, before the internet was widespread, strangely affords warrant protection only to data in “electronic storage” for 180 days or less; data older than 180 days is easily obtainable through a mere request to the data holder.

Facebook Inc. v. State is a win for digital privacy in New Jersey, but it also reminds us that more work needs to be done to ensure that similar tactics are not used across the country. Furthermore, Congress and state legislatures must update data privacy laws to attend to the realities of the digital age. Our failure to do so will permit mass surveillance and an erosion of civil liberties.