❓ Can police snoop on your Facebook page?

❗ The New Jersey Supreme Court has ruled on when and how police can eavesdrop on your social media

⁉ The Murphy administration asked the court for low standards

Police in New Jersey cannot eavesdrop on your Facebook page without a special wiretap warrant, New Jersey's highest court has ruled.

The ruling from the New Jersey Supreme Court is a victory for privacy advocates and Facebook as Gov. Phil Murphy's administration sought much looser standards to be able to see everything you are doing on your Facebook page - including private messages.

The justices were unanimous in their decision that snooping on your Facebook page in search of evidence for a potential crime is akin to wiretapping a phone. As such, a wiretap warrant is needed.

Chief Justice Stuart Rabner wrote, "The nearly contemporaneous acquisition of electronic communications here is the functional equivalent of wiretap surveillance and is therefore entitled to greater constitutional protection. New Jersey’s wiretap act applies in this case to safeguard individual privacy rights under the relevant statutes and the State Constitution."

Attorney General Matt Platkin's office sought to get around the more stringent protections by claiming law enforcement wasn't conducting surveillance in "real time."

Police were instead asking Facebook to provide snapshots of a Facebook page every 15 minutes continuously for up to 30 days. That, the AG's office argued, was "stored communication," and therefore could be obtained with an ordinary search warrant, which can be obtained simply with probable cause.

Canva/Townsquare Media illustration
Canva/Townsquare Media illustration

How did the ruling come about?

The case was brought before the high court after police sought a secret duplicate account of two men they suspected were using the social media platform to sell drugs.

While lower courts approved data warrants, Facebook refused to give police virtually unrestricted secret access to the suspect's accounts.

In its ruling, the justices also voided those data warrants.

No other state applies the looser standards to snooping on Facebook accounts that New Jersey law enforcement was seeking.

"The State’s request for information from users’ accounts invokes heightened privacy protections," Justice Rabner wrote.

He further rebuked police for seeking unrestricted access to an individual's social media pages without strong justification. "More intrusive searches call for enhanced protections, " Rabner wrote in the court's opinion. "Here, the privacy interests at stake and the level of intrusion are substantial."

Wiretap -vs- search warrant - What is the difference

Canva/Townsquare Media illustration
Canva/Townsquare Media illustration

A search warrant can be granted by any judge when reasonable suspicion exists that a crime has been or will be committed.

Getting a warrant for a wiretap is a significantly more involved process.

The same reasonable suspicion must be present, but there are several intensive steps involved before the order is granted.

To begin with, only officers that have been specially trained and certified in electronic surveillance can sign an affidavit requesting a wiretap.

The application must then be certified by the New Jersey Attorney General or County Prosecutor.

Requests can only be made to specially certified judges fully versed in wiretap law and designated by the Chief Justice of the New Jersey State Supreme Court.

Further, in addition to the above requirements, the agency seeking the wiretap must demonstrate normal investigative procedures have been or would be ineffective or too dangerous.

Defense attorneys can, and have, successfully challenged authorized wiretaps that do not adhere to the above guidance. In successful challenges, any evidence obtained by or connected to the wiretap can be thrown out as evidence against the suspect.

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