Appellate Division Tackles Second Twitter Case in Two Months

March 20, 2017Articles New Jersey Law Journal

Its users are only permitted 140 characters to communicate their thoughts, but the platform has emerged as a mechanism to move markets, impact elections, and to generally allow 319 million users, as reflected in available statistics from the fourth quarter of 2016, the ability to publicly share their thoughts on anything—for good or bad—with the rest of the world. The President of the United States is even an avid user; so much so that his near daily 5:00 a.m. Twitter musings have become a mainstay in the news and in sketch comedy alike.

Given the ubiquity of the platform, and the current popularity of social media in general, it is not surprising that the Appellate Division has now decided the second case involving the use of Twitter content as evidence in as many months. However, as has already been cautioned in "Use of Digital Evidence at Trial is Ripe for Guidance in the New Year,"233 N.J.L.J. 179, 51 (Jan. 16, 2017), when discussing the first of this recent duo of cases, there still remains the need for a more nuanced and thoughtful development of the law in New Jersey in connection with the often maligned and frequently misunderstood world of electronically stored information (ESI).

On Feb. 2, the Appellate Division decided In re State for Communications Data Warrants to Obtain the Contents of Stored Communications from Twitter, No. A-3651-15T4, 2017 N.J. Super. LEXIS 13 (App. Div. Feb. 2, 2017), addressing the State's application for two communications data warrants (CDWs) seeking the contents of two subjects' Twitter accounts. The trial judge issued both CDWs, but limited the scope of the warrants to prohibit the State access to any "oral or aural" components of any videos or video messages contained in the accounts. The issuing judge concluded that such components were "oral communications" under the Wiretap Act, N.J.S.A. §§ 2A:156A-1, et seq., and therefore could not be accessed by law enforcement with a CDW unless the State satisfied the more stringent requirements necessary for the issuance of a wiretap order.

Under the Wiretap Act, the State may apply ex parte to designated judges for an order authorizing the interception of a wire, or electronic or oral communication. However, the State must shoulder a heavy burden before it intercepts such a communication, which is far different from the standard that is associated with the State's application for a CDW. In addition to the rather intuitive showing of probable cause that an offense has been committed, and relevant communications pertaining to the offense will be intercepted through the proposed communications intercept, the judge presented with the State's ex parte application under the Wiretap Act must additionally find probable cause to believe that "[n]ormal 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." N.J.S.A. 2A:156A-10(a)-(c). Thus, the State must also demonstrate that it has tried to use other, more traditional and less intrusive investigative means and it has nonetheless failed, or that such means would be futile, to obtain an order under the Wiretap Act.

By contrast, a CDW is not subject to the more restrictive procedures and enhanced protections of the Wiretap Act. N.J.S.A. 2A:156A-29(a) requires only that a law enforcement agency obtain a warrant upon a basic demonstration of probable cause, without mention of the need to pursue or demonstrate the futility of other investigative means.

The Appellate Division, in In re State for Communications Data Warrants to Obtain the Contents of Stored Communications from Twitter, acknowledged that the issue of whether stored Tweets fell within the heightened standard of the Wiretap Act was one of first impression in the Garden State. In reversing the issuing judge, the Honorable Carmen Messano, P.J.A.D., writing for the Appellate Division panel, concluded that the Twitter postings were "electronic communications" in "electronic storage" and, therefore, legally accessible by the State with only a CDW. The fact that the postings might contain videos that in turn contained the recorded human voice did not alter the inherent nature of the Tweet as an "electronic communication" in the opinion of the panel.

The Appellate Division compared the Tweets to "satellite television transmissions that contain the aural transfer of sounds, including, presumably the human voice, which do not lose their character as 'electronic communications.'" The Appellate Division concluded 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. . . [.] Twitter postings are 'electronic communications' as defined by the Act." Thus, the matter was remanded to the trial judge for entry of CDWs that did not contain limitations on the State's access to audio components of the Twitter content sought by the State.

The ruling itself is somewhat limited to the audio portion of social media content, so it is difficult to determine the overall impact that it will have without an examination of hard statistics on what percentage of social media content is recorded audio. Nonetheless, when viewed in conjunction with the Appellate Division's Dec. 20, 2016, decision in State of New Jersey v. Terri Hannah, it is clear that the Appellate Division has—at long last—begun to chip away at the numerous legal issues inherent in the way that individuals live, work and play in the digital age. However, there are many more nuanced issues that remain ripe for consideration as our courts begin tackling ESI issues on a more frequent basis. Moreover, there should be grave concern that this decision will be extended beyond the limited social media context in which it was decided, where the act of posting content on the Internet via a social media platform like Twitter eliminates some of the privacy considerations that are involved with other forms of communications. For instance, modern forms of technology allow communications to be cheaply and efficiently recorded with relative ease using devices ranging literally from children's toys to complex handheld nanocomputers. Those communications, while stored digitally, are not placed in the public domain in the same manner as Twitter content.

Anytime checking forces on the State's power are relaxed or eliminated—and the heightened obligation on the State that was eliminated with this decision certainly qualifies as one of them—there should be concern about misuse and misapplication. Our fundamental right to be free from unwarranted government intrusion is sacrosanct, and New Jersey has historically provided more protections in the area of individual rights than exist under federal law. Too frequently, when ESI cases such as this one are decided, there is a rush to extend the holding beyond the fact pattern presented in the decision. The explanation for this rush to over-apply such decisions probably rests in the reality that ESI case law is still evolving because the development of technology has dramatically out-paced the development of the law. As with the Twitter decision decided last December, caution must be exercised with the application of In re State for Communications Data Warrants to Obtain the Contents of Stored Communications from Twitter.

Not all digital evidence is created equal, and what is applicable in the social media context may not be applicable to other, more sophisticated and more private forms of ESI than content posted to the Internet through a social media platform like Twitter. With ESI, what is good for the goose is not always good for the gander. In the wake of back-to-back Twitter rulings by the Appellate Division and a seeming propensity for courts to, finally, tackle the holes in our jurisprudence created by the advent of certain technologies, advocates and jurists alike must carefully consider the digital scenarios that we are presented with. We must ensure that the time-honored rights that we have historically advanced in this state and nation continue to be extended to individuals as we carry on the transformation from a traditional brick-and-mortar world to a rapidly evolving digital environment that is wrought with new intellectual challenges.

Reprinted with permission from the March 20 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.