Communications Data Warrant for Stored Email Permitted on Lower Standard Than Wiretap

In a follow-up decision to the recent rejection of a suppression motion, the N.J. Appellate Division reversed a Trial Court decision which limited the State's Communications Data Warrant seking stored email to two weeks prior to execution of a search warrant. In State v. Finesmith, the Court noted that, under the State's Wiretap Act, communications data warrants are different than wiretaps and require a lower standard for issuance. They require merely "reasonable grounds to believe that the record or other information pertaining to a subscriber or customer f an electronic communication server is relevant and material to an ongoing criminal investigation." N.J.S.A. 2A:156A-29A(e). This is because the information is not being intercepted contemporaneously with its transmission, but is being acquired in post-transmission electronic storage. The decision may be found here.

I think that the Wiretap Act distinction in this regard is arbitrary and fails to capture the significance of the retrieval of stored communication. Essentially the stored information is a complete record of the electronic communications. Retrieval of this information is tantamount to a retroactive wiretap. The nature of the information does not change with the fact that it is not being contemporaneously intercepted. The upshot is that law enforcement may, if there is no need for comtemporaneous interception (which requires a much higher standard for issuance of the warrant), simply avoid the warrant process for this same information and obtain it through a CDW.

New Jersey's privacy laws should be amended to reflect the reality that there is a legitimate expectation of privacy in even stored electronic communications data.