In the Matter of the Application of the State of New , 448 N.J. Super. 471 ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3651-15T4
IN THE MATTER OF THE APPLICATION APPROVED FOR PUBLICATION
OF THE STATE OF NEW JERSEY FOR
COMMUNICATIONS DATA WARRANTS TO February 2, 2017
OBTAIN THE CONTENTS OF STORED
APPELLATE DIVISION
COMMUNICATIONS FROM TWITTER, INC.,
FROM USERS @ ______ AND @ ______,
ESS-147-CDW-16 AND ESS-148-CDW-16.
___________________________________________
Argued December 13, 2016 – Decided February 2, 2017
Before Judges Messano, Guadagno and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
Nos. 147-CDW-16 and 148-CDW-16.
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), N.J.S.A. 2A:156A-1 to -37. The State of New Jersey sought
two communications data warrants (CDWs), N.J.S.A. 2A:156A-29(a),
to obtain from Twitter, Inc., an extensive list of information
and data associated with two specific Twitter accounts (the
accounts), as well as the contents of those accounts.1 The Law
Division judge approved both warrants but edited both so as to
include only the "visual but not oral component of video
messages," and the "visual but not aural/oral component" of any
"videos."
1
"Twitter is self-described 'as an information network made up
of 140-character messages called Tweets.'" State v. Hannah, ___
N.J. Super. ___, ___ n.1 (App. Div. 2016) (quoting In re J.F.,
446 N.J. Super. 39, 44 n.7 (App. Div. 2016)). "People post
Tweets, which may contain photos, videos, links and up to 140
characters of text. These messages are posted to [the person's]
profile, sent to [his or her] followers, and are searchable on
Twitter search." New User FAQs, Twitter, Inc.,
https://support.twitter.com/articles/13920# (last visited Jan.
3, 2017). Tweets may be "public" or "protected," and when an
individual subscribes to Twitter, his or her tweets are public
by default. "About public and protected Tweets," Twitter,
https://support.twitter.com/articles/14016#. If a user changes
the default settings to maintain privacy, the public may not
simply access the Tweets unless the user consciously accepts the
request. "FAQs about following," Twitter,
https://support.twitter.com/articles/14019#. For our purposes,
we assume the account holders in this case changed their default
settings to maintain privacy over the contents of their Tweets,
and therefore they are not accessible without judicial
intervention. See N.J.S.A. 2A:156A-4(c) (permitting
interception of wire, electronic and oral communications when
one party has given prior consent), and (e) (permitting the
interception or access of electronic communications where they
are "readily accessible to the general public").
2 A-3651-15T4
After we granted the State's motion for leave to appeal,
the judge filed a written amplification of reasons for his
decision, Rule 2:5-1(b), which has significantly assisted our
consideration of the issues. In large part, the judge relied
upon the "Administrative Procedures for Wiretap Applications,"
issued in October 2010 by the Administrative Office of the
Courts (AOC), and the AOC's Electronic Surveillance,
Communications Data Warrant and Communications Information Order
Manual (the Order Manual).2 The judge quoted a portion of the
latter "for analogous applications" involving searches of
cellular phones with cameras:
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
2
The Order Manual has since been updated, but the section cited
by the judge in the 2012 version has remained virtually
unchanged in the 2015 version.
3 A-3651-15T4
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.
4 A-3651-15T4
[N.J.S.A. 2A:156A-2(a) (emphasis added).]
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[,]" N.J.S.A. 2A:156A-2(t), for
the term "communication." L. 1993, c. 29 §§ 1-29 (the
Amendment).3 The Amendment also provided that a "[w]ire
communication includes any electronic storage of such
communication . . . ." N.J.S.A. 2A:156A-2(a) (emphasis added).
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 . . . ." N.J.S.A. 2A:156A-2(b).
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
3
The 1993 amendments were identical to amendments Congress made
to the Act's federal counterpart, Title III of the federal
Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510-
2520 (Title III), by enacting the Electronic Communications
Privacy Act of 1986 (ECPA), Title II of which is known as the
Stored Communications Act. White v. White, 344 N.J. Super. 211,
218-19 (Ch. Div. 2001).
5 A-3651-15T4
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 . . . ." N.J.S.A. 2A:156A-
2(q).
Among other things, the Act makes it illegal for anyone to
"[p]urposely intercept[] . . . any wire, electronic or oral
communication . . . ." N.J.S.A. 2A:156A-3(a) (emphasis added);
see also State v. Ates, 217 N.J. 253, 266 (explaining the
statutory scheme), cert. denied sub nom., Ates v. New Jersey,
6 A-3651-15T4
___ U.S. ___, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014).
"'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 . . . ."
N.J.S.A. 2A:156A-2(c) and (d).
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.
N.J.S.A. 2A:156A-8 (emphasis added). However, the State must
shoulder a heavy burden before it may "intercept" a
communication:
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]
7 A-3651-15T4
c. Normal investigative procedures
with respect to such offense have
been tried and have failed or
reasonably appear to be unlikely
to succeed if tried or to be too
dangerous to employ.
[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.
N.J.S.A. 2A:156A-27 makes it unlawful to "knowingly . . .
obtain[] . . . access to a wire or electronic communication
while that communication is in electronic storage." (Emphasis
added). With limited exceptions, an electronic communication
service4 "shall not knowingly divulge . . . the contents of a
communication while in electronic storage . . . ." N.J.S.A.
2A:156A-28(a)(1).
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.
N.J.S.A. 2A:156A-29(a).5 We have previously held
4
An "'[e]lectronic communication service' means any service
which provides to the users . . . the ability to send or receive
wire or electronic communications . . . ." N.J.S.A. 2A:156A-
2(p).
5
The Act requires a lesser standard for access to "a record, the
location information for a subscriber's or customer's mobile or
(continued)
8 A-3651-15T4
a CDW is not subject to the more restrictive
procedures and enhanced protections of the
. . . Act, which include a showing of
necessity because normal investigative
procedures have failed, N.J.S.A. 2A:156A-10.
By contrast, N.J.S.A. 2A:156A-29(a) requires
only that a law enforcement agency obtain a
warrant upon a showing of probable cause.
[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, N.J.S.A.
2A:156A-8, a CDW may be obtained without regard to the nature of
the crime being investigated.
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
(continued)
wireless communications device, or other information pertaining
to a subscriber or customer of the service," and not the
contents of an electronic communication. N.J.S.A. 2A:156A-
29(c). In those circumstances, the judge "shall issue" an
"order for disclosure" "if the law enforcement agency offers
specific and articulable facts showing that there are reasonable
grounds to believe that the record or other information . . . is
relevant and material to an ongoing criminal investigation."
N.J.S.A. 2A:156A-29(e) (emphasis added).
9 A-3651-15T4
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 the State failed to
establish necessary grounds for its issuance.6
We have considered the arguments raised in light of the
record and applicable legal standards. We reverse.
6
Amicus also asserts that we should vacate the CDWs in their
entirety because all communications, even "electronic
communications" in "electronic storage," deserve enhanced
protection under the Act. The well-recognized general rule is
that "amicus curiae must accept the case before the court as
presented by the parties and cannot raise issues not raised by
the parties." State v. O'Driscoll, 215 N.J. 461, 479 (2013)
(quoting State v. Lazo, 209 N.J. 9, 25 (2012)). Even though
this appeal involves an ex parte application by the State, we
conclude the general limitation placed upon amicus should apply
and decline to consider, for purposes of this appeal only, the
suggestion that the CDWs be vacated entirely.
10 A-3651-15T4
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, ___ N.J. ___, ___ (2016) (slip
op. at 14) (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)).
11 A-3651-15T4
Lastly, the Act was modeled after Title III of the federal
Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520,
Ates, supra, 217 N.J. at 266, and "must be strictly construed to
safeguard an individual's right to privacy." Id. at 268
(citations omitted). Although the Act is "more restrictive than
the federal act in some respects," we have recognized that "when
sections of the federal and state acts are substantially similar
in language, it is appropriate to conclude that our
Legislature's 'intent in enacting the sections of the . . . Act
. . . was simply to follow the federal act.'" Diaz, supra, 308
N.J. Super. at 510 (quoting State v. Fornino, 223 N.J. Super.
531, 544 (App. Div.), certif. denied, 111 N.J. 570, cert.
denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988)).
Interpretations of the federal act, therefore, provide
additional guidance in construing similar provisions of the Act.
Ibid.B.
As an initial matter, the videos posted on the accounts
were not "oral communications" as defined by the Act.7 In Diaz,
supra, 308 N.J. Super. at 506, we "consider[ed] the
7
The judge concluded the audio portions of any videos or video
messages were "oral communications" under the Act. Amicus
agrees with the State that the judge's reasoning in this regard
was incorrect.
12 A-3651-15T4
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., Delwood Farms,
Inc., 216 F.3d 621, 622-23 (7th Cir. 2000) (emphasis added)
(quoting 18 U.S.C.A. § 2510(2)); see also Huff v. Spaw, 794 F.3d
543, 548-54 (6th Cir. 2015) (holding communications were "oral"
13 A-3651-15T4
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
14 A-3651-15T4
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 their character as "electronic
communications," whose contemporaneous illegal interception is
prohibited by the federal act. See DIRECTV Inc. v. Pepe, 431
F.3d 162, 166-67 (3d Cir. 2005) (citing DIRECTV Inc. v.
Nicholas, 403 F.3d 223, 225-26 (4th Cir. 2005); United States v.
One Macom Video Cipher II, SN A6J050073, 985 F.2d 258, 261 (6th
Cir. 1993); United States v. Herring, 993 F.2d 784, 787 (11th
Cir. 1993); United States v. Lande, 968 F.2d 907, 909-10 (9th
Cir. 1992); United States v. Davis, 978 F.2d 415, 417-18 (8th
Cir. 1992); United States v. Splawn, 982 F.2d 414, 415-16 (10th
Cir. 1992)(en banc)).8
8
The State correctly points to some of the practical problems
associated with the judge's reasoning and why compliance with
the wiretap provisions of the Act to secure the audio portions
of these videos is impossible. The Act requires any application
(continued)
15 A-3651-15T4
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
(continued)
for a wiretap order to include a "showing that there is probable
cause to believe that such communication will be communicated on
the wire or electronic communication facilities involved
. . . ." N.J.S.A. 2A:156A-9(c). The audio portion of the
subject videos has already been communicated and recorded.
N.J.S.A. 2A:156A-10(d) requires that, with certain exceptions,
the wiretap order shall be issued only if there is probable
cause "the facilities from which, or the place where, the wire,
electronic or oral communications are to be intercepted, are or
have been used, or are about to be used, in connection with the
commission of [certain] offense[s], or are leased to, listed in
the name of, or commonly used by, such individual." As the
State points out, it may never know who recorded a posted video,
or when or how it was recorded. Every interception made
pursuant to a wiretap order is subject to minimization, N.J.S.A.
2A:156A-12(f), requiring the State to terminate "as soon as
practicable," any unnecessary interception. We have no idea how
the State could comply with such a requirement regarding the
audio portion of these videos. Finally, in many circumstances,
the Act requires the service of an inventory of intercepted
conversations upon the individuals whose conversations were
intercepted. N.J.S.A. 2A:156A-16. The State correctly notes
that it may never be able to identify those whose oral
communications are captured in the audio component of the
videos.
9
In adding "electronic storage" to the definition of "wire
communications," Congress's "sole purpose . . . was to protect
voice mail . . . ." United States v. Councilman, 418 F.3d 67,
76 (1st Cir. 2005). Notably in 2001, as part of the Patriot
Act, Congress amended the federal statute to remove "electronic
storage" from the definition of "wire communication." See 18
U.S.C.A. § 2510(1). In so doing, "Congress . . . reduce[d]
(continued)
16 A-3651-15T4
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[,]" N.J.S.A. 2A:156A-2(a), while an electronic
communication includes "any transfer of . . . sounds . . . of
any nature transmitted in whole or in part by a wire . . .
system . . . ." N.J.S.A. 2A:156A-2(m). Indeed, in construing
the similar provisions of Title III and the ECPA enacted by
Congress in 1986, federal courts have observed "the intersection
of these two statutes 'is a complex, often convoluted, area of
the law.'" Konop, supra, 302 F.3d at 874 (quoting United States
v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998)); see also, Steve
Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457,
462 (5th Cir. 1994) (noting the federal statute is "complex,"
(continued)
protection of voice mail messages to the lower level of
protection provided other electronically stored communications."
Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir.
2002) (citations omitted). Our Legislature has not made a
similar change to the Act.
However, the continued use of "electronic storage" in the
definition of a "wire communication" does not, as amicus
suggests, necessarily mean Tweets and associated videos are no
longer "electronic communications." See Councilman, supra, 418
F.3d at 78 ("No document or legislator ever suggested that the
addition of the electronic storage clause to the definition of
'wire communication' would take messages in electronic storage
out of the definition of 'electronic communication.'").
17 A-3651-15T4
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
18 A-3651-15T4
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
19 A-3651-15T4
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 the Act. Like its federal
counterpart, the Amendment's definition of "electronic
communications" intentionally included a broad range of
communications that, unlike wire communications, were not
narrowly defined so as to require an "aural transfer" of
information. N.J.S.A. 2A:156A-2(a). Twitter users routinely
convey their messages without any aural component at all,
instead, using the "transfer of signs, signals, writing . . .
[and] data" in their posts. N.J.S.A. 2A:156A-2(m). The
purposely-intended broader definition of "electronic
communications," see Councilman, supra, 418 F.3d at 76-77,
sweeps in other forms of transfer, like "images [and] sounds,"
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N.J.S.A. 2A:156A-2(m), but the mere presence of the human voice
does not change the inherent nature of a Tweet.
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. N.J.S.A. 2A:156A-3.
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
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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.
22 A-3651-15T4