In the Matter of the Application of the State of New ( 2017 )


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  •                           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                     NOT FOR PUBLICATION WITHOUT THE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,"
    
    
    
    
                                                   20                                         A-3651-15T4
    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
    
    
    
    
                                                 21                                  A-3651-15T4
    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