Police Need a Wiretap To Eavesdrop On Your Facebook Posts, Court Rules

In a landmark ruling (PDF) on Thursday, the New Jersey Supreme Court sided with Facebook in a major court decision that requires prosecutors to get a wiretap order if they want to eavesdrop on social media accounts without adequate evidence of a crime. New Jersey Monitor reports: In a reversal of lower court decisions, the high court ruled against authorities who argued a warrant is sufficient to obtain nearly real-time release of such communications. That argument is unsupported by federal or state statute, the court said, adding that allowing such releases would effectively neuter New Jersey's wiretap law.

In separate cases focused on two men under investigation for drug offenses, authorities obtained a communications data warrant to force Facebook to disclose social media postings -- within 15 minutes of their creation -- made by the pair over a 30-day span. The state contended such releases, which Facebook said were as close to real-time as technology allows, could be made without meeting the higher bar for a wiretap order because by the time Facebook provided them, they would already have been transmitted and electronically stored.

But Thursday's decision says allowing such releases would make the state's wiretap statute obsolete because "law enforcement today would never need to apply for a wiretap order to obtain future electronic communications from Facebook users' accounts on an ongoing basis." Authorities must show probable cause to obtain a warrant. To obtain a wiretap order, they must also demonstrate that other investigatory methods would fail -- because they are too dangerous, for example -- according to criminal defense lawyer Brian Neary. Neary argued on behalf of the New Jersey State Bar Association, which joined the case as a friend of the court. "It's great to see the New Jersey Supreme Court make clear that whenever the government seeks ongoing access to our private conversations, it must meet the heightened protections required under state law and the federal and state constitutions," said Jennifer Granick, surveillance and cybersecurity counsel with the American Civil Liberties Union.

How

[pitch2cv]

For others like me who think this ruling is merely stating the obvious: how has it come to the point where this is even a case a court had to decide on?

Police always stretch their powers

[Bruce66423]

The abuses generated by the laws panicked through after 911 are well documented. The police and other law enforcement agencies assume they are the good guys, who therefore can be trusted to do the right thing, so feel no need to be constrained. So when they get a choice, they ignore the obvious because of course they won't abuse it...

And no - there's seldom accountability for their behaviour. Torture? It got the data we needed...

Re:How

[Entrope]

The key issue in this decision is the difference between a standard warrant and a wiretap warrant. All the courts recognized the police would need at least a standard warrant to get this content, but what's new is that they definitely need a wiretap warrant, which is harder to get and normally narrower in scope.

Some of the uncertainty was the federal Stored Communications Act, and the state's equivalent law, which mean a standard warrant is all that is needed for "stored" messages. Some of was the third-party doctrine. Some is that Facebook messages aren't obviously like a phone call, which is the original kind of wiretap capture.

Re: How

[pitch2cv]

Thanks for clearifying that!

So if I may summarize: a search warrant is for past posts, a wiretap warrant for ongoing/future communications.

Beautifully decent, how it's supposed to work officially. Like, without national security services going rogue.

Re:

[tlhIngan]

Thanks for clearifying that!

So if I may summarize: a search warrant is for past posts, a wiretap warrant for ongoing/future communications.

Beautifully decent, how it's supposed to work officially. Like, without national security services going rogue.

Correction - the search warrant is for non-public information held in the account - like say, DMs and private friends, as well as private posts.

Public posts don't require a warrant because they are well, in the public. Police don't need a warrant to access infor

Re:

[bill_mcgonigle]

Government runs on ego and they love their convictions and don't believe in a god so their oath to the Constitution means nothing to them.

They wantonly violate rights because they get promotions that way and never lose their job or pension for misbehavior.

They have pensions because the people want free shit now so they expect their grandchildren to pay for their government. Otherwise cops and judges would have a 401(k) that they owned.

It's all about incentives and our system is designed to incentivize tyra

Re:How

[ArchieBunker]

Government runs on ego and they love their convictions and don't believe in a god so their oath to the Constitution means nothing to them.

They wantonly violate rights because they get promotions that way and never lose their job or pension for misbehavior.

End qualified immunity for the police and this will clear up real quick. The aren't required to know the laws https://www.vox.com/2015/8/4/9... [vox.com] but as a citizien I'm supposed to? Make the cops pay for malpractice insurance.

They have pensions because the people want free shit now so they expect their grandchildren to pay for their government. Otherwise cops and judges would have a 401(k) that they owned.

It's all about incentives and our system is designed to incentivize tyranny.

Madison said his Republic could only ever work for a virtuous people.

I want free shit now because I pay taxes and in return I want services.

Re:

[The Evil Atheist]

The court had to decide on it because it was brought before it for the purpose of having it decided legally.

That's how the law works in Anglo countries.

Lots of issues don't get decided by the court, such as the case gets dropped or the parties settle, and is in legal limbo.

Four decades of tough on crime propaganda

[rsilvergun]

You would be amazed what you can get past the judge or jury after all that. Parts of the South are turning private prisons into literal slavery factories where prisoners are reached out for forced labor and we're all just kind of okay with that...

Small Bump in the Slippery Slope

[byronivs]

This is result of the idea that the information is already given out willingly (to anyone) it is now not private and the LE can have it. You can have secrets, but the government gets, by compulsion, to know when you tell someone else the secret. Whether they buy it or simply take it with warrant.

Your secrets with Facebook aren't, neither are your emails. Facebook's a terrible friend and you shouldn't share with them. But as far as the rest goes, this shows the need for not just "privacy" laws, but laws tha

Let's talk about Border Officer encounters

[braden87]

Border Officers in a growing number of countries can hold you for a good chunk of time if you don't give your pin, fingerprint, face, dna(jk) ... whatever you use to unlock your phone. They scare you into believing you'll never leave if you don't give it up. If you have no evidence, stay the hell out of my phone. "Oh he seemed nervous, we can legally invade his privacy". Equivalent to the "impartial" K9 units that their handlers instruct to alert when it's time to disadvantage another poor soul. I miss working for a company that makes one of the most common phones. I could reversibly brick my phone before crossing the border and the unbrick it with laptop after crossing. The work laptop? Specific instructions to call their lawyers and not unlock it at any border. It's not like they only do it to folks not covered by the constitution of the country folks are entering in to (somehow this is 0.0001% more understandable than actual citizens). In the US and Canada at least, they'll demand RETURNING CITIZENS unlock their devices on the same soil that grants them constitutional rights. Absurd.

Re:

[DarkOx]

This is been unpopular in this venue but -

Nations have a right to know who and what are crossing their borders. In fact I would argue in the case of the US 'provide for the common defense' utterly requires it and the present situation represents a total dereliction of constitutional duties.

I don't think you should be able to move ANYTHING across the border without it being subject to exhaustive search ( which is not say everything must be searched but CBP should have an unquestioned right to do it ). Simil

Re:

[drinkypoo]

I don't think you should be able to move ANYTHING across the border without it being subject to exhaustive search

Lick them boots harder, surely the feds will single you out for praise any day now

Re:

[braden87]

I'm kinda half-way between you two. I think border agents should be able to search electronics but WHERE REASONABLE. Anecdotal observations are not evidence or probable cause. If someone is nervous that's not a reason to download every byte from their phone. Hell, if they're not having a great day and aren't super friendly that's not PC. The problem (at least from my view point) is that these searches can happen with no concrete evidence, just one persons assessment of another (inviting bias much?). I cou

Re:Let's talk about Border Officer encounters

[drinkypoo]

The constitution prohibits unwarranted search and seizure, so any law that gives carte blanche to perform searches is unconstitutional. But don't nobody care about the constitution these days, especially the supremes.

Re:

[braden87]

I'm not American but I lived there for a handful. The 4th amendment should trump US Code? 4th amendment: "no search without warrant" USC T19: "except for these dudes". I dunno my friend. CBP may conduct warrantless inspections and searches at or near the border to detect contraband and other federal customs violations. Title 19 of the U.S. Code and implementing regulations authorize an “officer of the customs” (defined to include CBP officers) to inspect persons, baggage, cargo, and merchandis

Re:

[drinkypoo]

The 4th amendment should trump US Code?

Yes. That's literally how it's supposed to work.

Re:

[Entrope]

The constitution prohibits unwarranted search and seizure

Which constitution does that? The Fourth Amendment to the United States Constitution says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Emphasis added.

Re:

[braden87]

you're right the 4th doesn't say anything about warrants. I was reading an interpretation. certainly the word reasonable is used.

Re:

[braden87]

Well the title of this post is "Police Need a Wiretap To Eavesdrop On Your Facebook Posts, Court Rules". Border Officers are law enforcement and phone searches could easily reveal internet communications (see iMessage, FB Messenger, etc) which would require a wiretap warrant in any sane engagement between LE and citizens. It's very on topic.

At least they needed a warrant

[Bruce66423]

I'd expect them to do it without anything...

. . . If They Want to Use That as Evidence

[YetAnotherDrew]

They can and will still spy on your Facebook poops without a warrant, but on finding anything, they'd need to do parallel construction.

Re:

[avandesande]

The lawsuit is by facebook. I assume giving police access to someone's feeds is time consuming and costly... why would they give them access without the warrant.?

Eavesdropping on social media accounts

[Sloppy]

If the FBI wants to read my Slashdot comment history, they better have a warrant! Don't you dare click on my username without a judge's ok.