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.
December 13, 2016
appeal from the Superior Court of New Jersey, Law Division,
Essex County, Docket Nos. 147-CDW-16 and 148-CDW-16.
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
Judges Messano, Guadagno and Suter.
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. 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
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). 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).]
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."
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.
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.
"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
[N.J.S.A. 2A:156A-2(a) (emphasis added).]
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). 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).
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