RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3350-20

 A-0119-21

FACEBOOK, INC.,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY,

Defendant-Appellant.

________________________________

IN RE THE APPLICATION OF THE 

STATE OF NEW JERSEY FOR A 

COMMUNICATIONS DATA 

WARRANT AUTHORIZING THE 

OBTAINING OF THE CONTENTS OF

RECORDS FROM FACEBOOK, INC.

________________________________

Argued January 31, 2022 – Decided April 4, 2022

Before Judges Sabatino, Rothstadt and Mayer.

On appeal from the interlocutory orders of the Superior 

Court of New Jersey, Law Division, Atlantic County, 

Warrant No. 1527-CDW-21 and Mercer County,

Warrant No. 1311-CDW-21. 

Sarah C. Hunt, Deputy Attorney General, argued the 

cause for appellant State of New Jersey (Andrew J. 

APPROVED FOR PUBLICATION

April 4, 2022

APPELLATE DIVISION
2

A- 3350-20

Bruck, Acting Attorney General, attorney; Sarah C. 

Hunt, of counsel and on the brief).

Seth P. Waxman (Wilmer Cutler Pickering Hale and 

Dorr LLP) of the District of Columbia bar, admitted pro 

hac vice, argued the cause for respondent Facebook Inc. 

(Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & 

Sinins, PC, Seth P. Waxman, John K. Roche (Perkins 

Coie, LLP) of the District of Columbia and Virginia 

bars, admitted pro hac vice, Mikella M. Hurley (Perkins 

Coie, LLP) of the District of Columbia and New York 

bars, admitted pro hac vice, Ronald C. Machen and

Catherine M.A. Carroll (Wilmer Cutler Pickering Hale 

and Dorr LLP) of the District of Columbia bar, and 

George P. Varghese, (Wilmer Cutler Pickering Hale 

and Dorr LLP) of the Massachusetts bar admitted pro 

hac vice, attorneys; Rubin Sinins, Seth P. Waxman, 

Ronald C. Machen, Catherine M.A. Carroll, John K. 

Roche, Mikella M. Hurley, and George P. Varghese, on 

the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In these two appeals, which we calendared back to back and have 

consolidated for the purpose of writing one opinion, we are asked to determine 

as a matter of first impression whether communication data warrants (CDWs) 

or, conversely, wiretap orders had to be served on Facebook, Inc. n/k/a Meta

Platforms, Inc. (Facebook) in order for law enforcement officers to secure 

prospective electronically stored information from two of Facebook's users' 

accounts as part of separate ongoing criminal investigations. For the reasons 
3

A- 3350-20

stated in this opinion, we conclude that only the CDWs and not wiretap orders

were required, where, as here, the data sought was from information that would 

be stored by Facebook as compared to simultaneous transmission of information 

through interception. However, we also conclude the CDWs relied upon in these 

two matters were too lengthy in duration under our state's warrant procedures,

and therefore require modification, as discussed herein.

The appeals arise from orders entered by two Law Division judges who 

quashed, in part, separate CDWs in these unrelated matters in response to 

Facebook's motions. Both judges determined that wiretap orders, rather than 

CDWs, were required to compel Facebook to turn over information it would 

collect and store prospectively from two of its users' accounts, without any 

notice to the individuals who are subjects of the investigations. While we 

conclude that such orders were not required, we affirm for other reasons,1 with 

a significant temporal modification explained herein. We do so with the 

understanding that our determination is without prejudice to the Facebook 

account users' privacy claims should they be asserted in the future.

1

 "[B]ecause an appeal is taken from a trial court's ruling rather than reasons for 

the ruling, [we] may rely on grounds other than those upon which the trial court 

relied" when, as here, that ruling has been challenged. State v. Adubato, 420 

N.J. Super. 167, 176 (App. Div. 2011).
4

A- 3350-20

I.

Warrants and the Trial Court Proceedings

At the outset, we summarize the proceedings before the two motion 

judges, one in the Atlantic vicinage (A-3350-20) and the other in Mercer (A0119-21). According to the State, the Atlantic application for the CDW2

established "probable cause for believing that the said Facebook account 

believed to be used by ["Anthony"

3

] . . . and other as yet unidentified 

individuals, will provide evidence of, tend to show violations of, and identify 

individuals engaged in" drug distribution crimes, contrary to N.J.S.A. 2C:35-

5(a)(1), recruitment to join a street gang, contrary to N.J.S.A. 2C:33-28, gang 

criminality, contrary to N.J.S.A. 2C:33-29, promotion of organized street crime, 

contrary to N.J.S.A. 2C:33-30, and conspiracy to commit each of these, contrary 

to N.J.S.A. 2C:5-2.

Similar to the Atlantic CDW, the State contends the Mercer CDW 

application demonstrated "probable cause for believing that" "Maurice," the 

Facebook user, "and other individuals," who are not specified, "are engaging in, 

2

 The sworn affidavits submitted in support of the CDWs are not in the record.

3

 We refer to the account holders by pseudonyms to protect their privacy and to 

maintain the confidentiality of the investigation. See R. 1:38-3(c)(10) and 3:5-

4. The account holders are not parties in these cases.
5

A- 3350-20

and are committing, have committed, and are about to commit" Chapter 35 drug 

distribution offenses, including N.J.S.A. 2C:35-5, N.J.S.A. 2C:35-10, and a 

conspiracy to violate both, contrary to N.J.S.A. 2C:5-2. Unlike the Atlantic 

CDW, the Mercer warrant also stated, "[t]he Captioned Facebook Account has 

been and continues to be used" by the target of the search "to facilitate the 

commission of the specified crimes."

Based on the State's applications, which were filed in March 2021 by the 

Atlantic County Sheriff's Office in Atlantic and a State Trooper in Mercer, 

separate judges issued two CDWs directed to Facebook. Both CDWs sought 

substantially the same types of data from Facebook, which included the contents 

of electronic communications, location data, and basic subscriber information. 

However, only the contents of stored electronic communications are at issue in 

this appeal.

The Atlantic CDW directed Facebook to disclose, among other things, the 

contents of electronic communications from a Facebook account controlled by 

the user identified as Anthony, from January 1, 2021, through the duration of 

the order—thirty days after the CDW's issuance. The Mercer CDW directed

Facebook to disclose to the State, among other things, "the contents of stored 

electronic communication" concerning a user identified as Maurice from 
6

A- 3350-20

December 1, 2020, through the duration of the order—thirty days after its 

issuance. Included in "the contents of stored electronic communications," were 

images, videos, audio files, posts, comments, histories, and the contents of all 

private messages in all message folders, including inbox, sent, chat messenger, 

and trash folders,

4 dating back to January 1, 2021(with respect to the Atlantic 

CDW) and December 1, 2020 (as to the CDW from Mercer) "through the 

duration of th[e] order" with respect to both.

The warrants also provided for "real-time" access to such communications 

via creation of a "cloned," "ghost," or "active duplicate account" to be linked to 

an account or electronic mailbox exclusively controlled by the New Jersey State 

Police or other law enforcement agencies assisting with the investigation. Both 

warrants further directed the "installation and operation" of duplicate accounts 

used to obtain access to these communications that "shall begin and terminate 

as soon as practicable, and continue for a period of 30 days," during which time 

the "devices [could] be utilized 24 hours a day . . . Monday through Sunday." 

4

 The Atlantic CDW, but not Mercer's, also sought "stories," "profiles," and 

"billing records." The CDW described "stories" as "temporary videos that users 

post that can be accessed by clicking on the user's profile photograph." A 

"profile" ordinarily contains the same types of data already captured by the 

definition of stored electronic communications, discussed infra. See Oracle 

Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1105 (N.D. Cal. 2016)

(discussing the data contained within typical Facebook profile).
7

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The Atlantic CDW, but not the Mercer CDW, specified that the "realtime" data so obtained and stored on servers must be "provided to law 

enforcement officials in approximately 15-minute intervals." In its brief, the 

State represents that the 15-minute interval procedure had been its practice since 

at least February 2020, and that its omission from the Mercer CDW was error.

In total, the CDWs compelled the ongoing disclosure of prospective 

electronic communications for thirty consecutive days, and the immediate 

disclosure of at least twice as many days' worth of historical communications—

seventy-four days in the Atlantic CDW; sixty-three days in Mercer.

Both CDWs ordered Facebook not to disclose the existence of the 

investigation to the subscribers. While the Mercer CDW's nondisclosure 

component was to expire in 180 days, the Atlantic CDW's nondisclosure order 

would continue indefinitely "until further order of th[e] [c]ourt," though 

terminating when the investigation ends. The Atlantic CDW frames the notice 

issue as precluding Facebook from providing "notice to anyone involved with 

the account or any of the data, messages, and content intercepted," whereas the 

Mercer CDW contains no form of the term "intercept." (Emphasis added).

Facebook partially complied with both CDWs, providing all requested 

historical electronic communications on the targets' accounts that were stored 
8

A- 3350-20

on its servers as of the date the CDWs issued, as well as non-content 

communications, such as, among other things, location information, that 

occurred during the thirty-day period following issuance of the CDWs. What 

Facebook declined to do, in each case, was provide the contents of any 

prospective electronic communications, which, again, are the only electronic 

communications at issue in this appeal.

The Trial Courts' Rulings

Facebook filed a motion to quash in each vicinage. In response, the two 

judges entered orders quashing the portions of the CDWs with which Facebook 

had not complied; the Atlantic judge did so on May 6, 2021, and the Mercer 

judge on June 25, 2021. In each case, the judge partially quashed the CDWs to 

the extent they compelled disclosure of the contents of prospective 

communications. The judges found the future disclosures tantamount to 

electronic surveillance, necessitating a wiretap order, rather than an ordinary 

search warrant.

With respect to the Atlantic CDW, the motion judge observed that the 

Fourth Amendment grants every citizen the right "to enjoy privacy in their 

communications," and framed the search and seizure issue as "whether the State 

has a right to intrude on that privacy." Because the CDW compelled disclosure 
9

A- 3350-20

of the prospective contents of communications, that authorization should be 

viewed more "stringently" than customer or subscriber records, and had to 

"comply with constitutional requirements." As the CDW sought "information 

that is in the future," the surveillance was "tantamount to eavesdropping" and 

"an interception," notwithstanding the fifteen-minute delay in the prospective 

disclosures. The length of the delay did not matter, because "[i]t's in the future," 

the court held, which meant "there has to be a required showing and a time 

limit." Because the CDW compelled "a series of intrusions" the State needed to 

meet "the heightened protections" required under the federal and state wiretap 

acts. Accordingly, the Atlantic judge partially granted the motion to quash to 

the extent it compelled disclosures of prospective communications. 

Similarly, the Mercer motion judge held at the outset that "[e]lectronic 

surveillance constitutes a search fully protected by the safeguards of the Fourth 

Amendment." The judge declined to construe the term "intercept" as "limited 

solely to . . . instantaneous transmission," opting instead to apply the term to the 

"ongoing prospective acquisition of content of the user's electronic 

communications." The judge explained that the CDW sought to obtain 

electronic communications "in real[-]time," notwithstanding the fifteen-minute 

delay, which, in the judge's view, was "an inherent part of the transmission 
10 A- 3350-20

process," based on Facebook's representation "that their systems [were] 

incapable of providing perfectly simultaneous real[-]time access." 

Relying on the Seventh Circuit's decision in United States v. 

Szymuszkiewicz, 622 F.3d 701, 705-06 (7th Cir. 2010), and the First Circuit's 

decision in United States v. Councilman, 418 F.3d 67, 71 (1st Cir. 2005), the 

Mercer judge held that "when there is a delay inherent in the transmission of an 

electronic communication that involves a brief [storage] period . . . before it can 

possibly be intercepted . . . an interception can occur after an electronic 

communication is held briefly in electronic storage during its transmission," as 

would be the case with the fifteen-minute delays. The judge held "placing of 

the electronic communications on Facebook servers prior to the dissemination 

[wa]s intrinsic to the transmission process." 

Like the Atlantic motion judge, the Mercer judge was also concerned with 

the thirty-day length of the CDW because it raised "legitimate concerns as it 

[was] a prolonged period of intrusion on an individual's privacy." The order to 

quash the Mercer CDW was, like the Atlantic order, limited to the compelled 

disclosures of the contents of prospective electronic communications generated 

after issuance of the CDW.

II.
11 A- 3350-20

A.

After the orders were entered, the State moved for leave to appeal, which 

we granted in both cases. On appeal, the State's sole legal argument is that the 

motion judges erred by granting Facebook's motions to partially quash the 

CDWs. 

The State's Clarified Demand for Stored and To-Be-Stored Data Up to 30 Days

At oral argument before us, the State clarified it does not seek the 

contemporaneous transmission of the account holders' Facebook information,

despite the language contained in the CDWs that included the State being given 

"real-time" access through "cloned" or "ghost" or "duplicate" accounts. 

According to the State, Facebook historically required that language before it 

would comply with the CDWs. Through the warrants, the State seeks to obtain,

on an ongoing basis, information that has been stored by Facebook through the 

date of service of the warrant and that which Facebook will store in the future 

for a period of thirty days. 

Despite the State's confirmation that it does not seek to intercept 

information in "real-time," Facebook contends that there is no federal or state 

legal authority to allow "the State to obtain the contents of communications that 

have not yet occurred," without a wiretap order. Doing so "would allow law 
12 A- 3350-20

enforcement to obtain all prospective communications within minutes after they 

are stored, on an ongoing basis, for an indefinite period of time, based solely on 

a warrant" that was issued upon a showing of probable cause that existed at an 

earlier time. It is undisputed that if the State must secure a wiretap order, it will 

have to meet a higher burden relating to its need for a wiretap to secure the 

information it seeks.

Based on that framing of the issue before us, we consider under what 

parameters, if any, the State can secure through CDWs not only historically

stored electronic information, but also later stored information.

Our Scope of Review

We initially observe that as these matters do not involve any disputed 

facts, and call for statutory and constitutional interpretation, our review is de 

novo. State v. Hawkins, 461 N.J. Super. 556, 560 (App. Div. 2019). Based on 

our de novo review of the applicable principles of law, we conclude that 

prospective information can be obtained through a CDW, but only for a limited 

amount of time, as contemplated by our statutes and court rules. As discussed 

infra, we determine that limit by relying upon our court rules as they relate to 

execution of warrants generally.

B.
13 A- 3350-20

Salient Differences Between CDWs and Wiretap Orders

The present appeal highlights the different burdens law enforcement must 

satisfy before being able to secure a CDW or wiretap order. Succinctly, a CDW 

is markedly different from a wiretap order. State v. Finesmith, 408 N.J. Super. 

206, 211-12 (App. Div. 2009). "A wiretap order permits the interception by law 

enforcement of a communication contemporaneous with the transmission while 

a CDW is directed to acquisition of communications in post-transmission

electronic storage kept by an electronic communication service [(ECS)] or 

remote computing service [(RCS)] for reasons of backup protections for the 

communication." Ibid. (emphasis added). "By definition, an electronic 

communication in storage cannot be 'intercepted' because it is not 

contemporaneous with the transmission." Id. at 212. 

In In re Application of State for Communications Data Warrants to Obtain 

the Contents of Stored Communications from Twitter, Inc. (In re CDWs), 448 

N.J. Super. 471 (App. Div. 2017), we held that "the audio portions of the videos 

and video messages held in the accounts by Twitter are 'electronic 

communications' under the [New Jersey Wiretapping and Electronic 

Surveillance Control Act" (NJWESCA), N.J.S.A. 2A:156A-1 to -37], in 

electronic storage and accessible to the State through the CDWs issued by the 
14 A- 3350-20

Law Division judge, as compared to interception of "electronic communications 

in transmission." Id. at 485-86. In reaching our holding, we summarized as 

follows the different burdens of proof the State must satisfy to obtain a wiretap

order or a CDW:

The State may apply ex parte to designated judges for 

"an order authorizing the interception of a wire, or 

electronic or oral communication . . . when such 

interception may provide evidence of the commission 

of" certain enumerated crimes. N.J.S.A. 2A:156A-8. 

However, the State must shoulder a heavy burden 

before it may "intercept" a communication:

In part, the judge must find probable cause to 

believe that

a. The person whose communication 

is to be intercepted is engaging or 

was engaged over a period of time as 

a part of a continuing criminal 

activity or is committing, has or had 

committed or is about to commit an 

[enumerated] offense . . . ;

b. Particular communications 

concerning such offense may be 

obtained through such interception; 

[and]

c. Normal 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.
15 A- 3350-20

[State v. Ates, 217 N.J. 253, 266-267

(2014) (alterations in original) 

(quoting N.J.S.A. 2A:156A-10(a) to 

(c)).]

The Amendment also created a new crime under the 

Act. N.J.S.A. 2A:156A-27 makes it unlawful to 

"knowingly . . . obtain[] . . . access to a wire or 

electronic communication while that communication is 

in electronic storage." With limited exceptions, an 

electronic communication service "shall not knowingly 

divulge . . . the contents of a communication while in 

electronic storage . . . ." N.J.S.A. 2A:156A-28(a)(1).

One such exception permits disclosure to law 

enforcement "of the contents of an electronic 

communication," but not a wire communication, 

"without notice to the subscriber . . . if the law 

enforcement agency obtains a warrant[,]" i.e., a CDW. 

N.J.S.A. 2A:156A-29(a)(5). We have previously held

a CDW is not subject to the more 

restrictive procedures and enhanced 

protections of the . . . Act, which include a 

showing of necessity because normal 

investigative procedures have failed, 

N.J.S.A. 2A:156A-10. By contrast, 

N.J.S.A. 2A:156A-29(a) requires only that 

a law enforcement agency obtain a warrant 

upon a showing of probable cause.

[Finesmith, 408 N.J. Super. at 212.]

Additionally, unlike a wiretap order which may only be 

issued to intercept evidence of the commission of 

certain crimes, N.J.S.A. 2A:156A-8, a CDW may be 
16 A- 3350-20

obtained without regard to the nature of the crime being 

investigated.

[In re CDWs, 448 N.J. Super. at 476-78 (emphases 

omitted) (footnotes omitted) (quoting Ates, 217 N.J. at 

266-67, and Finesmith, 408 N.J. Super. at 212).]

Moreover, if issued, a wiretap order requires that "[e]very interception . . . 

is subject to minimization, N.J.S.A. 2A:156A-12(f), requiring the State to 

terminate 'as soon as practicable,' any unnecessary interception." Id. at 482 n.8.

State and Federal Statutes

As discussed in more detail infra, separate state and federal laws restrict 

the issuance of CDWs and wiretap orders under limited circumstances and 

subject to certain conditions.5 In order to understand the concerns those laws 

are meant to address, we briefly turn our attention to the fundamental privacy 

5

 Where the federal and state statutes overlap, we look to the federal court for 

guidance. As we have explained: 

Although the [NJWESCA] is "more restrictive than the 

federal act in some respects," we have recognized that 

"when sections of the federal and state acts are 

substantially similar in language, it is appropriate to 

conclude that our Legislature's 'intent in enacting the 

sections of the . . . Act . . . was simply to follow the 

federal act.'" Interpretations of the federal act, 

therefore, provide additional guidance in construing 

similar provisions of the NJWESCA. 

[In re CDWs, 448 N.J. Super. at 479-80.]
17 A- 3350-20

rights that warrant constitutional protection from government searches, 

including through the use of wiretaps, which warrant the application of higher 

standards for the interception of an individual's prospective communications 

with others on an ongoing basis as compared to obtaining historically stored 

material.

Constitutional Limitations

The Fourth Amendment of the United States, incorporated in all States 

through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 (1961), 

provides:

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 [w]arrants shall issue, but upon 

probable cause, supported by [o]ath or affirmation, and 

particularly describing the place to be searched, and the 

persons or things to be seized.

[U.S. Const. amend. IV.]

The New Jersey Constitution provides the same protections in nearly identical 

language. N.J. Const. art. I, ¶ 7.

"The Fourth Amendment prohibits a general warrant." United States v. 

Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002). Lawful searches and seizures 

must be limited to particular items. To satisfy the Fourth Amendment, a search 
18 A- 3350-20

warrant "must . . . describe the things to be seized with sufficient particularity 

and be 'no broader than the probable cause on which it is based.'" Ibid. (quoting 

United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1991)).

Fourth Amendment protections extend to personal conversations. "The 

right of privacy -- the right to be free from government officials arbitrarily 

prying into our personal conversations -- is one of the preeminent rights in our 

constitutional hierarchy." State v. McQueen, 248 N.J. 26, 31 (2021). "[I]t has 

been an established principle, at least since the Supreme Court's decision in Katz 

v. United States, [389 U.S. 347, 361-62 (1967) (Harlan, J., concurring),] that the 

Fourth Amendment protects individuals from intrusions upon their private 

electronic conversations." R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 

2149, 894 F. Supp. 2d 1128, 1142 (D. Minn. 2012). This protection extends to 

"not only physical searches but also electronic interception of phone 

conversations." State v. Feliciano, 224 N.J. 351, 367 (2016).

In 1967, in two "landmark" cases, Berger v. New York, 388 U.S. 41, 54 

(1967) and Katz, 389 U.S. at 348, the United States Supreme Court applied 

Fourth Amendment limitations upon searches that employed electronic 

surveillance, specifically, "phone conversations," to "safeguard individual 

privacy rights in this area." Ates, 217 N.J. at 266. The Fourth Amendment's 
19 A- 3350-20

application to "the area of electronic surveillance" of private conversations 

remains governed by the constitutional principles espoused in the Supreme 

Court's "seminal opinions in Katz and Berger." Feliciano, 224 N.J. at 367.

In Berger, the Court held that a New York statute's "blanket grant of 

permission to eavesdrop" lacked "adequate judicial supervision or protective 

procedures," in part because the two-month, court-ordered eavesdropping period 

allowed under the statute was "the equivalent of a series of intrusions, searches, 

and seizures pursuant to a single showing of probable cause." 388 U.S. at 59. 

It also authorized two-month extensions of the surveillance window premised 

only on the "public interest," which could be satisfied by reasserting the original 

grounds for probable cause, without showing "present probable cause for the 

continuance of the eavesdrop." Ibid. The statute "place[d] no termination date 

on the eavesdrop once the conversation sought [wa]s seized," leaving it "entirely 

in the discretion of the officer" whether to continue the surveillance. Id. at 59-

60.

Katz, 389 U.S. at 348, also involved electronic surveillance. FBI agents, 

without obtaining a warrant, installed an electronic recording device that 

captured six electronic recordings of an individual using a publicly accessible 

telephone booth to illegally transmit gambling information. Ibid. The Court 
20 A- 3350-20

held that "electronically listening to and recording the petitioner's words 

violated the privacy upon which he justifiably relied," which was "a 'search and 

seizure' within the meaning of the Fourth Amendment" that needed a warrant to 

justify it. Id. at 353. Echoing Berger, the Katz majority held, "[b]ypassing a 

neutral predetermination of the scope of a search" left the subjects of the 

surveillance "secure from Fourth Amendment violations 'only in the discretion 

of the police,'" and violated our constitutional structure. Id. at 358-59 (quoting 

Beck v. Ohio, 379 U.S. 89, 97 (1964)).

C.

Further Statutory Developments

Against that backdrop, one year after Berger and Katz, Congress enacted 

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Federal 

Wiretap Act), 18 U.S.C. §§ 2510 to 2522, which aimed to "define on a uniform 

basis the circumstances and conditions under which the interception of wire and 

oral communications may be authorized" and "to prohibit any unauthorized 

interception of such communications, and the use of the contents thereof in 

evidence." Pub. L. No. 90-351, § 801(b), 82 Stat. 197 (1968). "Title III 

established minimum standards for federal and state law enforcement officials 
21 A- 3350-20

to follow when seeking to intercept wire, oral, and electronic communications."

Ates, 217 N.J. at 266 (citing 18 U.S.C.A. 2516(2)). 

Later that same year, New Jersey enacted the NJWESCA modeled on the 

Federal Wiretap Act. L. 1968, c. 409, §§1 to 28; Ates, 217 N.J. at 266. The 

purpose of the state Act was to "protect[ ] the privacy of individuals," and to 

"control[ ] intrusive police activity." State v. Toth, 354 N.J. Super. 13, 21 (App. 

Div. 2002). Our Supreme Court has held that "[t]he Act must be strictly 

construed to safeguard an individual's right to privacy." Ates, 217 N.J. at 268.

Under both statutes, any person who "intentionally," under the federal 

law, or "purposely" in New Jersey, "discloses, or endeavors to disclose . . . the 

contents of any wire, oral, or electronic communication, knowing or having 

reason to know that the information was obtained through the interception of a 

wire, oral, or electronic[6]communication" shall be subject to a fine or criminal 

imprisonment, or both.7 18 U.S.C. § 2511(1); N.J.S.A. 2A:156A-3. In New 

6

 "[E]lectronic" communication was added to this group in the federal law in 

1986, and in the NJWESCA in 1993. Pub. L. No. 99-508, §§ 101 to 111, 100 

Stat. at 1849; L. 1993, c. 29, § 1.

7

 The statutes also make violators subject to civil suit. 18 U.S.C. § 2511(1); 

N.J.S.A. 2A:156A-24.
22 A- 3350-20

Jersey, the person "shall be guilty of a crime of the third-degree." N.J.S.A. 

2A:156A-3. 

In accord with Katz, both Acts allow qualified law enforcement officials 

to obtain from a judge with appropriate jurisdiction an ex parte order 

"authorizing . . . the interception of wire or oral communications" when it "may 

provide evidence" that would aid in the investigation of any of a series of 

specified criminal offenses. 18 U.S.C. § 2516(1)(g); N.J.S.A. 2A:156A-8. 

"Intercept," is defined in both statutes as "the aural or other[8]acquisition of the 

contents of any wire, electronic,[9] or oral communication through the use of any 

electronic, mechanical, or other device." 18 U.S.C. § 2510(4); N.J.S.A. 

2A:156A-2(c).

In accord with Berger, the federal and state Acts further set forth 

procedures law enforcement officers must follow when seeking such 

applications. Among other things, the statutes mandate that affiants on whose 

sworn oaths wiretap orders rest must give a "particular" description of the "type 

8

 As enacted, the statutes applied strictly to "aural acquisition," Pub. L. No. 90-

351, § 802, 82 Stat. at 212; L. 1968, c. 409, § 2, but were later expanded.

9

 "Electronic" was added in the 1986 amendments to the Federal Wiretap Act, 

Pub. L. 99-308, § 101(a)(1)(D), 100 Stat. 449, and in the 1993 amendments to 

the State Wiretap Act, L. 1993, c. 29, § 1.
23 A- 3350-20

of communication to be intercepted" and a factual statement demonstrating that 

other investigative techniques had failed, were "unlikely to succeed," or were 

"dangerous." 18 U.S.C. § 2518(1)(b)(iii), (c); N.J.S.A. 2A:156A-9(c)(3), (6).

These and similar mandatory procedures were designed to bring electronic 

eavesdropping by law enforcement within the constitutional confines 

established in Berger and Katz the previous year. See State v. Minter, 116 N.J. 

269, 274-75 (1989) ("The [Federal Wiretap Act] . . . responded to the concerns 

raised in Berger and Katz by creating a limited system of wire surveillance and 

electronic eavesdropping within the framework of the [F]ourth [A]mendment 

and the guidelines of Berger and Katz.").
24 A- 3350-20

D.

More Statutory Changes

Eighteen years later, Congress enacted the Electronic Communications 

Privacy Act of 1986 (ECPA), 18 U.S.C. §§ 2510 to 2521. Pub. L. No. 99-508, 

100 Stat. 1848 (1986). Title I amended the Federal Wiretap Act, modifying 

certain definitions and adding provisions concerning mobile tracking devices. 

§§ 101 to 111, 100 Stat. at 1848-59. Title II was referred to as the Stored Wire 

and Electronic Communications and Transactional Records Access Act (SCA), 

a new chapter, codified at 18 U.S.C. §§ 2701 to 2711. Pub. L. No. 99-508, §§ 

201 to 202, 100 Stat. at 1860-68. Title III, codified at 18 U.S.C. §§ 3121 to 

3127, concerned "pen registers" and "trap and trace" devices.10 Pub. L. No. 99-

508, §§ 301 to 302, 100 Stat. at 1868-73.

Seven years after the federal amendments, in 1993, the New Jersey 

Legislature amended its own statutory scheme to substantially conform state law 

10

 "A 'pen register' is a device that records the numbers dialed for outgoing calls 

made from the target. A trap and trace device captures the numbers of calls 

made to the target phone." In re Application for Pen Reg. & Trap/Trace Device 

with Cell Site Location Auth., 396 F. Supp. 2d 747, 752 (S.D. Tex. 2005)

(footnote omitted). 
25 A- 3350-20

to the ECPA.11 N.J.S.A. 2A:156-27 to -34. The State Legislature, like Congress, 

altered the definition of "intercept" to include the acquisition of "the contents of 

any . . . electronic communication" in addition to "any wire or oral 

communication." 18 U.S.C. § 2510(4); N.J.S.A. 2A:156A-2(c).12

The federal and state statutes both define "electronic communication" to 

include "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, photoelectronic or photo optical system that affects interstate 

or foreign commerce." 18 U.S.C. § 2510(12); N.J.S.A. 2A:156A-2(m). 

"[C]ontents" of electronic communications include "any information concerning 

the substance, purport, or meaning of that communication." 18 U.S.C. § 

2510(8); N.J.S.A. 2A:156A-2(g). "Electronic storage" means, "any temporary, 

intermediate storage of a wire or electronic communication incidental to the 

electronic transmission thereof," as well as "any storage of such communication 

11

 The NJWESCA "was modeled after Title III of the [Federal Wiretap] Act, 18 

U.S.C.A. §§ 2510 to 2520, . . . and must be strictly construed to safeguard an 

individual's right to privacy." In re CDWs, 448 N.J. Super. at 479 (internal 

quotation marks and citations omitted).
26 A- 3350-20

by an electronic communication service for . . . backup protection." 18 U.S.C. 

§ 2510(17); N.J.S.A. 2A:156A-2(q). 

The SCA and the NJWESCA, provide different standards for the 

disclosure of stored electronic records depending on whether the person or entity 

doing the disclosing is an ECS or an RCS. The SCA defines an ECS as "any 

service which provides to users thereof the ability to send or receive wire or 

electronic communications," 18 U.S.C. § 2510(15), and an RCS as a service 

providing users with "computer storage or processing services by means of an 

electronic communications system." 18 U.S.C. § 2711(2). The NJWESCA 

defines the terms substantially similarly. N.J.S.A. 2A:156A-2(p), (s). However, 

when a government entity13 seeks to compel disclosure of the contents of 

electronic communications without providing notice to the subscriber or 

customer, the significance of the distinction between ECS and RCS providers 

erodes.

13

 One distinction between the federal and state statutes pertains to the nature 

of the entity that is compelling disclosures. While the SCA broadly concerns 

records sought by any "governmental entity," 18 U.S.C. § 2703(c)(B), the 

NJWESCA is limited to "[a] law enforcement agency, but no other governmental 

entity." N.J.S.A. 2A:156A-29(a). As the governmental entities here were both 

law enforcement agencies, this distinction is immaterial in these cases.
27 A- 3350-20

Under subsection (a) of 18 U.S.C. § 2703, "governmental entit[ies] may 

require the disclosure by a provider of [ECS] of the contents of a wire or 

electronic communication, that is in electronic storage in an [ECS] for one 

hundred and eighty days or less, only pursuant to a warrant . . . issued using 

State warrant procedures," in state court matters. 18 U.S.C. § 2703(a). For 

communications in storage longer than that, subsection (b), pertaining to RCS 

providers, controls. Similarly, under subsection (b), without notice, disclosure 

is only available "if the governmental entity obtains a warrant . . . in the case of 

a State court, issued using State warrant procedures." 18 U.S.C. § 

2703(b)(1)(A). In language more direct than the federal statute, but amounting 

to the same thing, the New Jersey statute provides that, with respect to both ECS 

and RCS providers, "[a] law enforcement agency . . . may require the disclosure 

by a provider . . . of the contents of an electronic communication without notice 

to the subscriber or the customer if the law enforcement agency obtains a 

warrant." N.J.S.A. 2A:156A-29(a). Unlike the federal statute, there is no 

qualifier in the text of the NJWESCA requiring that the electronic 

communication, the disclosure of which is compelled under the search warrant, 

be "in electronic storage." Ibid. 
28 A- 3350-20

III.

A.

The State's Contentions of Error

With that understanding of the federal and state laws in this area, we turn 

to the State's contentions on appeal. 

On appeal from both orders, the State principally argues that the judges 

erred by mistakenly holding that the compelled disclosures of the contents of 

prospective communications from electronic storage after initial transmission 

would constitute "interceptions" under the wiretap acts. In the State's view, "an 

interception occurs only when the content of the communication is acquired 

contemporaneously with its transmission," in "real-time," which does not apply 

to the searches and seizures here. These prospective electronic communications 

are not contemporaneous with transmission, the State notes, since the CDWs 

required them to be sent to the State every fifteen minutes "as part of the 

snapshot of the user's account--a process wholly unrelated to the messages' 

transmission." The wiretap acts are not concerned with the "acquisition of 

electronic communications from storage, no matter how brief that storage may 

be," under the State's construction.
29 A- 3350-20

The State maintains that because no wiretap order was needed, the issue 

was governed by the SCA and by the NJWESCA's warrant provisions applicable 

to electronically stored information. Congress intended for the SCA to apply to 

the acquisition of the contents of any communications obtained from electronic 

storage, regardless of whether the coming to rest of the communications in 

storage occurred "before or after the issuance of process." The SCA requires 

only a search warrant based on probable cause to compel disclosure of "a 

communication that has come to rest in storage . . . so long as the temporary, 

intermediate storage is 'incidental to'--i.e., not an essential part of--the 

communication's transmission from its point of origin to its point of reception."

Because Congress, and our own Legislature, determined the "acquisition of 

electronic communications from electronic storage does not implicate the same 

privacy concerns as the real-time interception," those legislative judgments 

should be respected. 

The Atlantic judge, per the State, "mistakenly focused on the timing of the 

acquisition vis-à-vis the issuance of the CDW" in "conclud[ing] that the 

acquisition of any communication transmitted after the issuance of the 

CDW[] . . . '[wa]s tantamount to eavesdropping,'" and thereby required a wiretap 

order. In so holding, the judge failed to recognize the contemporaneity 
30 A- 3350-20

component of the wiretap acts, instead focusing on the fact that the CDW sought 

prospective communications, which was irrelevant. Where there was no 

anticipated interception contemporaneous with transmission, no wiretap order 

was needed.

As to the Mercer judge, despite "correctly recogniz[ing]" that Facebook 

was not even capable of granting "the State real-time access to a user's 

communications," the judge nevertheless "mistakenly concluded" that the 

contemporaneity requirement could be "satisfied by the acquisition of a 

communication from electronic storage, potentially as long as fifteen minutes 

later." Instead of "looking at the transmission from the point of origin to the 

point of reception"—the State's interpretation of the wiretap acts—the judge 

instead looked to the transmission from Facebook to law enforcement in 

deciding the contemporaneity requirement was satisfied.

B.

The Turnover of Stored and Prospectively Stored Electronic

Information Is Not An "Interception"

The nature of the arguments raised by the State requires us to consider the 

intention of the Legislature when it enacted the NJWESCA in order to determine 
31 A- 3350-20

if the subject CDWs' requirement for transmittal of prospective electronically 

stored information violated the Legislature's will. We conclude it did not. 

"The overriding goal" of statutory interpretation "is to determine . . . the 

intent of the Legislature, and to give effect to that intent." State v. Hudson, 209 

N.J. 513, 529 (2012). "The inquiry thus begins with the language of the statute, 

and the words chosen by the Legislature should be accorded their ordinary and 

accustomed meaning." Ibid. Courts should "apply to the statutory terms the 

generally accepted meaning of the words used by the Legislature," Patel v. N.J. 

Motor Vehicle Comm'n, 200 N.J. 413, 418 (2009), "read . . . in context with 

related provisions so as to give sense to the legislation as a whole." DiProspero 

v. Penn, 183 N.J. 477, 492 (2005). 

"If the language leads to a clearly understood result, the judicial inquiry 

ends without any need to resort to extrinsic sources." Hudson, 209 N.J. at 529. 

"In other words, extrinsic aids may not be used to create ambiguity when the 

plain language of the statute itself answers the interpretative question; however, 

when the statutory language results in more than one reasonable interpretation, 

then resort may be had to other construction tools . . . in the analysis." Id. at 

529-30. When "the Legislature's intent is clear from the statutory language," 

courts should "apply the law as written." Shelton v. Restaurant.com, Inc., 214 
32 A- 3350-20

N.J. 419, 429 (2013). However, "extrinsic evidence may be considered when 'a

plain reading of the statute leads to an absurd result or if the overall statutory 

scheme is at odds with the plain language.'" Hardy ex rel. Dowdell v. AbdulMatin, 198 N.J. 95, 101 (2009) (quoting DiProspero, 183 N.J. at 493).

With these guiding principles in mind, we turn to the NJWESCA 

requirements for wiretaps. Again, the state and federal Acts preclude the 

intentional or purposeful interception of any electronic communication, as well 

as the intentional or purposeful "disclos[ure]" or "use[ ]" of "the contents of any" 

electronic communication while "knowing . . . that the information was obtained 

through the interception." 18 U.S.C. § 2511(1); N.J.S.A. 2A:156A-3. The key 

to whether the electronic communications sought through the CDWs are subject 

to a wiretap's requirements is: whether the CDWs ordered communications to 

be "intercept[ed]." Ibid. We conclude they did not.

As already noted, an "[i]ntercept," is "the aural or other acquisition of the 

contents of any wire, electronic, or oral communication through the use of any 

electronic, mechanical, or other device." 18 U.S.C. § 2510(4); N.J.S.A. 

2A:156A-2(c). Although this definition "does not explicitly require that the 

acquisition of a communication occur contemporaneously with the transmission 

of the communication . . . courts interpreting this language have uniformly 
33 A- 3350-20

concluded that an intercept requires contemporaneity." Luis v. Zang, 833 F.3d 

619, 627 (6th Cir. 2016); see also Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 

107, 113 (3d Cir. 2003) ("Every circuit court to have considered the matter has 

held that an 'intercept' under the [Federal Wiretap Act] must occur 

contemporaneously with transmission."); accord Boudreau v. Lussier, 901 F.3d 

65, 77-78 (1st Cir. 2018); Szymuszkiewicz, 622 F.3d at 705-06; United States 

v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir. 2003); Konop v. Hawaiian 

Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002); Steve Jackson Games, Inc. v. 

U.S. Secret Serv., 36 F.3d 457, 461-62 (5th Cir. 1994); United States v. Reyes, 

922 F. Supp. 818, 836 (S.D.N.Y. 1996).

Here, just like we did when we considered the information from Twitter 

that the State sought through a CDW in In re CDWs, "[w]e [again] agree with 

the State and the overwhelming federal precedent that holds interception, as 

defined by the [NJWESCA] and the federal act, contemplates the acquisition of 

the communication contemporaneously with its transmission." 448 N.J. Super. 

at 485-86 (emphasis added) (citations omitted). As in that case, "[i]n this case, 

the State does not seek to access the electronic communications in transmission. 

Rather, the State seeks to access the electronic communications already in 

'electronic storage' on [Facebook's] servers," and those that will be. Ibid. 
34 A- 3350-20

One textual basis for this interpretation is that the ECPA defines 

"intercept" as applying to "electronic communications" but does not specifically 

mention communications in electronic storage. 18 U.S.C. § 2510(4). Since an 

"electronic communication" refers to "any transfer of signs, signals, writing, 

images, sounds, data, or intelligence of any nature transmitted in whole or in 

part," § 2510(12) (emphasis added), "intercept . . . does not apply to the 

acquisition of electronic signals that are no longer being transferred." Luis, 833 

F.3d at 627. Rather, "[o]nce the transmission of the communication has ended, 

the communication ceases to be a communication at all," and instead "becomes 

part of 'electronic storage[,]'" at which point "a person cannot 'intercept' the 

former communication because the term intercept . . . does not apply to 

electronic storage." Ibid. 

An interception "must, in other words, catch the communication 'in flight' 

before the communication comes to rest and ceases to be a communication." Id.

at 627-28. The upshot is that "[t]he level of protection provided stored 

communications under the SCA is considerably less than that provided 

communications covered by the [Federal] Wiretap Act[,]" and "the procedures 

law enforcement must follow to access the contents of stored electronic 
35 A- 3350-20

communications" are likewise "considerably less burdensome and less 

restrictive than . . . under the Wiretap Act." Konop, 302 F.3d at 879.

As already mentioned, New Jersey courts have followed this federal 

precedent regarding the contemporaneity requirement of "intercept" when 

applying the NJWESCA. Finesmith, 408 N.J. Super. at 212; In re CDWs, 448 

N.J. Super. at 485. Several other jurisdictions have as well. See, e.g., Sparks v. 

Indiana, 100 N.E.3d 715, 720 (Ind. Ct. App. 2018) (where woman discovered 

on boyfriend's Facebook account "a recording of a conversation that had already 

taken place," she "did not intercept a communication in transit," but "accessed 

a communication in storage," and therefore did not violate the Federal Wiretap 

Act); Ohio v. Poling, 938 N.E.2d 1118, 1123 (Ohio Mun. 2010) (woman's 

reading and copying of her daughter's received email messages was not an 

"interception" under the ECPA); Evans v. Evans, 610 S.E.2d 264, 271 (N.C. Ct. 

App. 2005) (holding extraction of emails stored on and recovered from hard 

drive of family computer were not "intercepted" contemporaneously with 

transmission); Cardinal Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 979 

(M.D. Tenn. 2008) (finding persuasive an interpretation of "intercept" in 

Tennessee's Wiretap Act that "unless an e-mail is actually acquired in its split 
36 A- 3350-20

second transmission over a computer network, it cannot be 'intercepted' as that 

term is reasonably understood").

To the extent that, in their rulings, the motion judges here held the 

compelled disclosures of prospective electronically stored communications 

authorized by the CDWs were "interceptions" under the NJWESCA, those 

interpretations of that statutory term misapprehended the transmission 

contemporaneity requirement set by the above precedents and were therefore 

incorrect.14 In other words, because, the officers here would have no way to 

"catch the communication[s]" at issue "in flight," before they "c[a]me[] to rest" 

in electronic storage on Facebook's servers, the CDWs did not authorize the 

"interception" of any communications at all, and did not, in that respect, 

implicate the federal or state Acts. Luis, 833 F.3d at 627-28 (emphasis added);

accord Finesmith, 408 N.J. Super. at 212. 

Councilman and Szymuszkiewicz do not direct otherwise. Councilman

was an appeal from the dismissal of an indictment charging an email provider's 

employee with intercepting, disclosing, and using the contents of electronic 

communications, and with "causing a person providing an [ECS] to divulge the 

14

 Considering the warrants' language about transmissions through mirrored or 

ghost accounts accessible by law enforcement, we cannot criticize them for 

reaching their conclusions. 
37 A- 3350-20

communications' contents to persons other than the addressees," contrary to 18 

U.S.C. § 2511(1)(a) of the Federal Wiretap Act. Councilman, 418 F.3d at 71. 

To gain a commercial advantage, the defendant in Councilman directed the 

systems administrator of the email service to modify its mail-delivery agent 

program to copy messages from a specified domain before the messages reached 

the clients, and to then store them in a separate mailbox accessible to the 

defendant. Id. at 70-71. The litigation posture presented no occasion to address 

"whether the term 'intercept' applies only to acquisitions that occur 

contemporaneously with the transmission of a message from sender to recipient 

or, instead, extends to an event that occurs after a message has crossed the finish 

line of transmission." Id. at 80. Still, the panel noted it was "highly unlikely" 

that the defendant could show he had not "intercepted" the emails, because they 

were "acquired while they were still en route to the intended recipients." Ibid.

(emphasis added).

Szymuszkiewicz, 622 F.3d at 704, also concerned arguments raised by a 

criminal defendant charged with violating 18 U.S.C. § 2511(1)(a) of the Federal 

Wiretap Act. The evidence demonstrated that the defendant created a "rule" on 

the wiretapping victim's computer, "implemented on the server side," pursuant 

to which, whenever the victim received an email, the message would first be 
38 A- 3350-20

routed through the email provider's server, which "retained the message in its 

own files and dispatched two copies," one for the victim and one for the 

defendant, "within the same second." Ibid. (emphasis added). The court 

reasoned, "[t]he copying at the server was the unlawful interception, catching 

the message 'in flight.'" Ibid. 

Here, unlike in Councilman and Szymuszkiewicz, the CDWs did not grant 

access to the contents of prospective communications on Anthony's and 

Maurice's Facebook accounts while they were either "en route," or "within the 

same second," that they were placed on Facebook's servers. Rather, police 

would not have access until, at earliest, fifteen minutes after any electronic 

communication's transmission. Though the CDWs compelled Facebook to 

disclose the entire stored contents of each target's Facebook account for thirty 

prospective days, that did not make the disclosures contemporaneous with 

transmission. Luis, 833 F.3d at 627. Rather, once the communications would 

come to "rest" on Facebook's servers, they would be in "electronic storage," and 

thereby subject not to the wiretap acts, but to the SCA and the provisions of the 

NJWESCA that mirror that statute. Ibid.
39 A- 3350-20

C.

Constitutional and Other Limitations on Duration

Our determination that a wiretap order was not necessary does not 

necessarily lead us to conclude that the CDWs issued in the present matters met 

the requirements of the state NJWESCA or the federal SCA or either the federal 

or New Jersey constitutions. Our consideration of those issues leads us to 

conclude that, while the CDWs complied with the NJWESCA to a point, an 

additional limitation had to be imposed on the duration of the warrants in order 

to pass constitutional muster and to be in compliance with our court rules.

At the outset, we observe that it cannot be disputed that there is no 

language in the NJWESCA that expressly bars the production of prospectively 

stored information by a provider such as Facebook. For that reason, before us, 

the parties engaged in textual arguments as to why we should or should not read 

into the Act grounds for allowing through a CDW the release of prospectively 

stored electronic information or bar its release. 

Addressing the language of the applicable statutes, the crux of the textual 

dispute between Facebook and the State regarding the Federal SCA revolves 

around what "is" means in Congress's reference to an electronic communication 

"that is in electronic storage." The State contends that if Congress intended for 
40 A- 3350-20

"the SCA to apply only to communications in storage at the time a warrant was 

issued," and not to communications yet to exist, it would have used the same 

verb tense in 18 U.S.C. § 2703(a) when referring to communications in shorterterm electronic storage, as it did later in the same paragraph when referring to 

communications in longer-term electronic storage. Specifically, Congress 

referred to a communication in storage for one hundred and eighty days or less 

as one "that is in electronic storage in an electronic communications system," 

while referring to a communication in longer-term storage as one "that has been

in electronic storage." Ibid. (emphasis added). 

The verb tense difference, the State posits, is because the present tense for 

short-term electronic storage "includes any communication that is in storage 

presently or in the future, without any limitation." By contrast, the present 

perfect tense for longer-term storage refers only to storage "completed by the 

present time." If Congress intended the SCA to apply only to communications 

in storage at the time when legal process is issued, as both judges essentially 

held, the present perfect tense would have sufficed for both shorter and longerterm stored electronic communications. Instead, Congress intended 

communications in shorter-term storage would include "communications that 

are in storage presently or come to be in storage in the future," while 
41 A- 3350-20

communications in longer-term storage would include only communications 

whose storage had been complete longer than 180 days. In support, the State 

relies on the federal Dictionary Act's provision stating "unless the context 

indicates otherwise . . . words used in the present tense include the future as well 

as the present." 1 U.S.C. § 1. The State claims this proves Congress intended 

for the statute to apply prospectively to communications that have yet to exist 

when a warrant issues. Facebook contends the "context" here includes 

Congress's "comprehensive statutory scheme governing federal surveillance 

law," which contravenes the State's interpretation of the word "is," particularly 

because the SCA was intended to be retrospective while Titles I and III of the 

ECPA were intended to be prospective. 

As to the NJWESCA, the language is broader than its federal counterpart, 

stating, in the future conditional tense, that "[a] law enforcement agency . . . 

may require the disclosure by a provider . . . of the contents of an electronic 

communication without notice to the subscriber or the customer if the law 

enforcement agency obtains a warrant." N.J.S.A. 2A:156A-29(a). Again, absent 

from that Act, is any qualifying language requiring that the electronic 

communications ordered to be disclosed by the search warrant to ever be "in 

electronic storage" in the past, the present, or the future. Inverting the statute 
42 A- 3350-20

for illustrative purposes, the New Jersey Act simply states: "[I]f the law 

enforcement agency obtains a warrant," the agency "may require the 

disclosure . . . of the contents of an electronic communication." Ibid. Implicit 

in the absence of the "electronic storage" qualifier is that a warrant compels 

disclosure of the contents of the electronic communications specified in the 

warrant, regardless of whether they are "in electronic storage" when process is 

issued. Ibid.

By contrast, subsections (c)(1) and (c)(4) of the NJWESCA, concerning 

location information, provide, in the present perfect conditional tense, that 

when, among other possible statutory predicates, a "law enforcement agency" 

either "has obtained a warrant[,]" or, in the present tense, "believes in good faith 

that an emergency . . . requires disclosure without delay of information relating 

to the emergency[,]" the provider to whom the request is made "shall disclose," 

among other things, "the location information for a subscriber's . . . device." 

N.J.S.A. 2A:156A-29(c)(1), (4). 

Implicit in the clause in (c)(4) that an officer's good-faith present belief in 

an "emergency" justifies disclosure of location information is that the relevant 

location information will be prospective to the issuance of process and as near 

to real-time as possible. After all, it would be illogical to construe (c)(4) 
43 A- 3350-20

otherwise: allowing officers, during an ongoing emergency, to compel 

disclosure of only temporally distant, possibly stale location information. 

Assuming then that the Legislature used the present perfect tense to allow 

the compelled disclosures of future communications in subsection (c), it would 

be incongruous if the same Legislature in the same statute used the future 

conditional tense to disallow disclosures of future communications in subsection 

(a). See Borough of N. Haledon v. Bd. of Educ. of Manchester Reg'l High Sch. 

Dist., Passaic Cnty., 305 N.J. Super. 19, 28 (App. Div. 1997) (discussing canon

of statutory interpretation "that statutes dealing with the same subject matter 

ought to be construed together 'as a unitary and harmonious whole,' . . . so that 

each may be fully effective" (quoting Clifton v. Passaic Cnty. Bd. of Tax'n, 28

N.J. 411, 421 (1958))). It would also lead to an absurd inversion of the warrant 

preference, since officers could use (c)(4) to warrantlessly procure real-time 

location information based only on their subjective discretionary judgment that 

an emergency exists, but, under Facebook's construction of the NJWESCA as 

strictly retrospective from the vantage point of when the warrant issues, the 

officers could not obtain that same information with a warrant.

Similarly, focusing on the federal SCA, the entirety of § 2703 is written 

in the future conditional tense: i.e., only if something happens in the future 
44 A- 3350-20

(e.g., police obtain a warrant) or something else may happen later (e.g., police 

may require disclosure of the contents of stored electronic communications). If 

"is" is at all ambiguous, the ordinary presumption is to read it to imply "is and 

will be." 1 U.S.C. § 1. Other than the atypical warrant procedures here, nothing 

else about the "context" in which "is" appears in § 2703(a) and (b)(1)(A)

displaces this default rule. For these reasons, we conclude that neither the 

NJWESCA nor the SCA categorically bars the disclosure of prospective 

electronic communications not yet in storage when legal process issues.

Having determined that the NJWESCA does not prevent the turning over 

of prospectively stored electronic information, the question becomes for what 

period of time must the provider continue to turn that information over. It is 

undisputed that neither the federal nor the state Acts make any reference to such 

a limitation, nor is it disputed that to pass constitutional muster some reasonable 

limitation is required.

These CDWs in these matters directed in nearly identical language that 

"execution of this [CDW] shall continue . . . provided that the USER NAME 

and/or USER ID remain the same," for thirty consecutive days. (Emphasis 

added). Although warrant procedures generally permit search warrants to 

constitutionally authorize police to search for and seize evidence that will be in 
45 A- 3350-20

a specific place only "in the future," see, e.g., Illinois v. Gates, 462 U.S. 213, 

225-26 (1983) (upholding a warranted seizure even though items were not at 

specified location until after warrant issued); State v. Earls, 214 N.J. 564, 588 

(2013) (where the Court considered a series of continuous "24/7" intrusions 

through a tracking system and found that a warrant, an emergency, or some other 

warrant exception would all be sufficient to alleviate any privacy concerns 

associated with such ongoing searches and seizures); State v. Mier, 147 N.J. 

Super. 17, 20 (App. Div. 1977) ("There is no particular constitutional infirmity 

in the mere fact that a warrant is sought to search for contraband which has not 

as yet reached the destination described."), there is no state procedure that 

authorizes warrant execution periods as lengthy as in these CDWs. 

Rule 3:5-5(a)'s Ten-Day Limit

Our procedures, to which again federal law defers, see SCA, § 2703(a) 

and (b)(1)(A) (authorizing the State to compel disclosures of electronic 

communications in electronic storage without notice to the subscriber or 

customer only to the extent warrants are "issued using State warrant 

procedures"), mandate a search warrant "must be executed within 10 days after 

its issuance." R. 3:5-5(a). Once executed during the ten-day period, any 

additional warrants must be issued only upon another demonstration of probable 
46 A- 3350-20

cause. See Berger, 388 U.S. at 54 (rejecting "a series of intrusions, searches, 

and seizures pursuant to a single showing of probable cause").

Here, the CDWs' arbitrary inclusion of a thirty-day period for repeated

execution of the same warrant invalidated the warrants, as the duration allowed 

law enforcement to accomplish what was tantamount to repeated intrusions 

based on a single showing of probable cause existing at a particular time. To be 

sure, the constitutional infirmity here was not that the warrants called for a 

wiretap or interception of simultaneous communications, but instead was

founded upon the length and repeated nature of its execution without additional 

showings of probable cause.

The compelled disclosures of all prospective contents of electronic 

communications in a subscriber's social media account on an ongoing basis for 

more than four weeks authorizes multiple intrusions into private 

communications based on a single showing of probable cause, and therefore is 

contrary to the particularity requirement of the Fourth Amendment under 

Berger, 388 U.S. at 59. For that reason, the CDWs in their present form cannot 

be enforced as to prospectively stored electronic information.

In 2013, the New Jersey Supreme Court in Earls addressed the disclosure 

of cell phone users' location to law enforcement and observed that "Law and 
47 A- 3350-20

practice have evolved in this area in response to changes in technology." 214 

N.J. at 588. The same is true today as it relates to the evolving technology 

surrounding stored electronic information. 

The Ten-Day Limitation

In formulating an acceptable constitutional solution to the disclosure of 

that information, we choose to apply a practical approach to the release of 

prospective electronically stored communications under a CDW. To remain 

within the parameters of state warrant procedure, the CDWs can be issued, 

assuming probable cause is once again established, and served on Facebook 

requiring that any information identified in the warrant and stored by Facebook

during the period up to the day it is served with the warrant must be turned over. 

In addition, incorporating our state warrant procedures under Rule 3:5-5, going 

forward, if the State serves a CDW on Facebook for the disclosure of prospective 

electronic communications, no disclosures may be compelled beyond ten days 

from the issuance of the warrant. And, Facebook can comply with that 

requirement by producing the stored information on the day of or after the 

electronic communications have been stored.

Any further attempt to secure information from prospective time periods 

must be based upon new CDWs issued on new showings of probable cause. We 
48 A- 3350-20

believe that this practical approach, which modifies the trial courts' dispositions,

is consistent with the federal and state constitutions and our warrant procedures,

comports with the applicable statutes, and fairly balances the interests of the 

parties before us.15

All other arguments raised in the parties' briefs either lack sufficient merit 

to warrant discussion, R. 2:11-3(e)(1)(E), or are unnecessary to reach in light of 

our disposition.

The orders appealed from are affirmed as modified, without prejudice to 

the State's ability to reapply to the trial courts for approval of warrants consistent 

with the limitations set forth in this opinion.

Affirmed as modified. 

15

 Again, we are not addressing any claims that might be raised by the users of 

the Facebook accounts as to the scope of the CDWs as they are not before us 

nor are the users apparently even aware of the investigations.