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Privacy has been viewed differently during different eras. It may be difficult, for example, to achieve today the level of privacy—isolation?—those in past eras by living in a cabin out in the woods. Cabins have internet access nowadays, after all. Given this, courts across the country (inclusive of New Jersey), have found ways to use the prevalence of social media in legal processes. This blog will address how privacy rights are recognized today in New Jersey as compared to what used to be the dominant understanding. Through this, this article will give you insight into routes that the law may take, depending on future court decisions. Remember, a Mercer County criminal defense lawyer is just a phone call or an email away. You don’t have to face down criminal charges alone, so get in touch with us today.
Privacy Rights in the Digital Age
Facebook Inc v. State of New Jersey (2021) saw two cases reach the Appellate court. In both, the police had tried to get very similar CDWs, or Communication Data Warrants. Having probable cause of potential drug distribution, the police wanted comments, posts, histories, private messages, and the ability to spoof a phantom duplicate account of the defendant for the purpose of gaining direct access to any and all communications, over as long as the duration of a 30-day warrant order.
Both Facebook and the trial court agreed that the police should be granted this information, with the exception of any prospective or future-stored communications. For the trial court, this would have been permissible, had the police but requested a wiretap order in place of the search warrant they actually submitted. Wiretaps satisfy a bigger burden for police, allowing them to record communications without consent from defendants.
The Appellate court, however, reversed this decision in early 2022. For the Appellate court, for a wiretap order to be applicable, communications needed to be simultaneous, and digital communications like Facebook posts were not simultaneous in the court’s view.
In keeping with their request that the search order be operable for a 30-day period, the court also granted the state an appeal regarding whether the search warrant had to be restricted to 10 days. If the court on appeal ends up allowing a CDW under these conditions, New Jersey will be the only state to so permit. It would be a very significant increase in law enforcement’s vigilance capabilities. For example, a CDW might be requested in which the state police are allowed to check a user’s messages every 15 minutes, every day for 30 days, all without ever asking for a wiretap order.
Privacy’s Original Form as a Constitutionally Protected Right
Previous United States Supreme Court decisions took a different tack. In Berger v. United States 288 U.S. 41 (1967), the Court held that New York could not allow police to surveil people’s homes through wiretaps and bugs following a search warrant, for two reasons. The Court reasoned that a search warrant was meant to give notice to the suspect and the inherent secrecy of wiretaps and bugs ran counter to that. The Court also did not consider that it was constitutional to listen to multiple conversations where potentially individuals participated. This holding was later supported by Congress’s Wiretap Act and Electronic Communications Privacy Act of 1986, as well as the many state legislatures that passed similar laws.
Today the trend has gone in the opposite direction, and it will be interesting to see how this area of law continues to evolve. In the meantime, be sure to get skilled and informed advice from an experienced criminal defense attorney, who will be able to guide you even in the face of uncertainty.
