When police want to order a social media company to give them access to a person’s future social media messages every 15 minutes for a period of thirty days, can they do so through one search warrant, or do they need to apply for a wiretap order?
The Fourth Amendment protects our privacy by requiring that police get a warrant before most searches. But courts and legislatures have recognized that some searches are so dangerous that extra protections are required. One example of this is the Wiretap Act, which regulates how police are able to eavesdrop on people’s telephonic and internet communications.
The U.S. Supreme Court recognized that communications are especially sensitive in Berger v. United States, 388 U.S. 41 (1967). In the case, the Court evaluated whether a New York statute allowing police to wiretap phone lines and place “bugs” in people’s homes and offices was constitutional. The Court struck down the statute and explained why eavesdropping is such a dangerous surveillance technique:
it gives police wide discretion to listen to many conversations, many of which may be completely innocent;
it captures the thoughts of innocent people to whom the suspect is talking;
it involves authorizing police to listen to people for weeks or months instead of a more targeted approach; and
it necessarily is done in secret, as opposed to most searches that notify the subject of the search that they are occurring.
Responding to these concerns, Congress passed the Wiretap Act and the Electronic Communications Privacy Act of 1986 (ECPA) to regulate how police may eavesdrop on citizens. Many state legislatures, such as the New Jersey legislature, passed nearly identical state laws. These laws permit eavesdropping, but they make it more difficult to obtain the wiretap orders necessary to do it. Wiretapping orders:
can only be obtained after a judge is convinced that other less invasive investigative procedures that could be used to obtain the information either failed, are unlikely to succeed, or would be too dangerous to try;
must include minimization procedures that minimize the collection of irrelevant communications during eavesdropping and ensure eavesdropping stops once its goals are met; and
can be obtained only to investigate certain serious crimes that are enumerated in advance.
These three extra protections go above and beyond what the Fourth Amendment’s warrant requirement dictates.
In this case, Facebook (now Meta) is challenging the New Jersey State Police, who tried to use a regular warrant to order Facebook to repeatedly provide the contents of users’ communications once every 15 minutes for 30 days. In other words, Facebook would provide users’ messages 2,880 times over the next 30 days.
This strange procedure was the New Jersey police’s attempt to get around the federal and state wiretap statutes. According to the police and the lower court in the case, the police only need a wiretap order when they order Facebook to “intercept” communications, and only a message that is being actively transmitted can be intercepted. Since the police requested access to communications stored on Facebook’s servers every fifteen minutes, the police were not ordering Facebook to intercept messages at all. By this logic, the police would not need a wiretap order to demand Facebook to send them users’ messages every 15 milliseconds because that is not intercepting.
If allowed, the New Jersey courts would be the only ones in the country—for now—who permit this practice.
EPIC filed an amicus brief along with the Electronic Frontier Foundation and with Center for Democracy and Technology, with help from Davis Wright Tremaine, arguing that the police need to obtain a wiretap order before demanding a social media company give them prospective access to users’ communications. The brief explains that the New Jersey Police Department’s theory would eviscerate the protections of the Wiretap Act altogether. What the police sought in this case was a wiretap, even if it looked superficially different. The type of surveillance mirrored the surveillance that the Supreme Court found worrisome in Berger: it enabled long-term surveillance of future conversations including innocent people based on a single showing of probable cause, with no procedures for minimizing data collection or proof that other techniques wouldn’t work just as well. EPIC regularly submits amicus briefs in cases involving communications privacy.