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In re Application of State of New Jersey for Communications Data Warrants

Superior Court of New Jersey, Appellate Division

February 2, 2017

IN THE MATTER OF THE APPLICATION OF THE STATE OF NEW JERSEY FOR COMMUNICATIONS DATA WARRANTS TO OBTAIN THE CONTENTS OF STORED COMMUNICATIONS FROM TWITTER, INC., FROM USERS @ ______ AND @ ______, ESS-147-CDW-16 AND ESS-148-CDW-16.

          Argued December 13, 2016

         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).

          Before Judges Messano, Guadagno and Suter.

          OPINION

          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-2 9(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."

         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-l(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 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.
[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 nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system that affects interstate, ...

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