Those aren’t their real names. Anthony and Maurice probably don’t even know each other. They may not even know they are the main characters in this story at all.
The only thing they have in common is that they’re from New Jersey, suspected of dealing drugs and allegedly used Facebook to commit their crimes.
Facebook, along with tech rivals Microsoft and Google, has long cooperated with cops in every jurisdiction, turning over evidence in response to warrants and court orders.
But in court papers, Facebook says New Jersey authorities wanted unfettered access to Anthony’s and Maurice’s Facebook pages — far beyond what they are required to give in response to warrants in other states.
That has sparked the legal battle that has risen all the way to New Jersey’s Supreme Court.
The case, argued last month and pending a decision, provides a rare glimpse into the secretive agreements between law enforcement and social media companies with undergirding access to work lives, social lives and, yes, various crimes.
Facebook has argued that New Jersey law enforcement, led by the state Attorney General’s Office, is asking not just for previous photos, posts and private messages, but “real-time” account access allowing investigators to “eavesdrop” on users without sufficient evidence they’ve committed a crime.
In every other state, Facebook only hands over the keys to an account like that in response to a wiretap order — a big deal with a high legal bar.
“Why the state aims to render New Jersey the least privacy-protective jurisdiction in this country is a mystery,” Seth P. Waxman, an attorney for Facebook, said in March during oral arguments at the state justice complex in Trenton.
Privacy watchdogs agree.
A coalition of technology and civil rights groups is urging the state Supreme Court to reject law enforcement’s argument, calling it a major intrusion ripe for abuse.
“You don’t have to be a criminal to be spied on,” Jennifer Granick, a California-based attorney for the American Civil Liberties Union who appeared before the justices as a friend of the court, told NJ Advance Media in an interview.
Granick argued the case is not just about Anthony and Maurice, but the privacy of anyone they interact with online. Their friends and family. Potential love interests. Former classmates trying to get them to invest in their side-hustle.
“I can say this, because I’m from New Jersey: We all know somebody who’s been under investigation,” said Granick, who earned her right to crack Jersey jokes during a childhood in Glen Ridge.
State Attorney General Matthew Platkin’s office contends that Facebook used to cooperate readily with New Jersey police requests for account access using search warrants. The office argued that proper safeguards are in place to protect people’s privacy rights.
Both Facebook and Platkin’s office declined requests for comment.
We don’t know much else about Anthony and Maurice because the records in the two cases, which were unrelated but merged because they involve similar legal questions, are impounded. Anthony and Maurice are aliases assigned by the court. It’s not clear whether either is still under investigation or if they were ever charged with a crime.
That’s part of what the fuss is about in Facebook, Inc. v. State of New Jersey: How much proof that somebody has committed a crime is required before a tech company hands over the keys to your Facebook profile, your email account or the payment app you maybe — allegedly — used to pay your roommate’s cousin for drugs?
And once the cops are in, how long can they stick around?
Here’s what we do know about Anthony, Maurice and what they were up to on Facebook.
Investigators from the New Jersey State Police and the Atlantic County Sheriff’s Office sought access to their accounts based on suspicions the men were using the platform to exchange messages and posts with customers and co-conspirators.
They wanted access to a “cloned” or “ghost” account (duplicates of a person’s Facebook that serve as a back door for law enforcement to monitor an account’s activity) every 15 minutes for 30 days, according to court records.
Separate judges approved communication data warrants in May and June of 2021. Both ordered Facebook “not to disclose the existence of the investigation” to Anthony or Maurice.
The list of included media was exhaustive: “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.”
Facebook partially complied. In both cases, the company turned over communications and location data stored right before the date the warrant was issued, but declined to give them continued access to the accounts going forward.
For those, Facebook said the state needed to produce a wiretap order. Both cases ended up consolidated in an appeals court, where a panel of judges partially sided with the state, but reduced the time period they could access the accounts from 30 days to 10.
Now the Supreme Court is weighing sometimes-excruciatingly technical arguments over the difference between a search and a wiretap.
And what does that mean in a society that is increasingly wireless?
“You really can get a full picture of a person’s life looking at their phone and what they’re saying to people using Internet communication services,” said Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, which filed papers in the case siding with Facebook.
We live our lives on social media and cellphones, but the law still uses the language of brick and mortar and landlines, Crocker said.
“It’s a good example of how when new communication technologies evolve, there’s these questions of how an existing statute applies.”
Over more than two hours of oral argument in Trenton last month, the justices teased out some of the legal distinctions at play when we talk about “prospective electronically stored information,” a jumble of syllables that, taken together, mean “stuff you will say on Facebook in the future.”
The state is seeking access to accounts every 15 minutes using search warrants. Is that “real-time”? How about 15 seconds? Both sides of the dispute agreed the line can be fuzzy.
The metaphors thrown before the court also got a little tortured. Here’s one:
Think of your Facebook page like a house, pre-Internet. If police want to come rifle through your drawers, they need to show you a search warrant. But if they want to listen in on the private conversations on your telephone or in your living room, they need a wiretap order, which requires significantly more evidence.
So is giving cops access to your Facebook page — every 15 minutes, for a month — a search? Or is it a wiretap?
Deputy Attorney General Sarah C. Hunt, who represented the state, told the justices it was a search.
The state argues private Facebook messages don’t have the same standard of protection of, say, a phone call or in-person conversation where no record exists. Hunt said such repeated “snapshot” access was not an intrusion akin to listening in on someone’s phone calls that would require a wiretap order.
“What it does require is a warrant, subject to all the usual protections that can be raised by a criminal defendant in the ordinary course in his individual case,” she said.
“That’s what was obtained here.”
Now the justices must weigh whether New Jersey police overstepped their authority or if there is something unique in Garden State law that allows a different standard for vacuuming up residents’ Facebook data.
Justice Fabiana Pierre-Louis, one of the newest members of the court, appeared skeptical of the state’s argument during questioning. She noted that, under the state’s theory, “it seems like the state would never have to serve a wiretap order” in order to surveil Facebook pages.
“Comparing the warrant the state is obtaining here to a warrant for a physical space, does the state get search warrants for days and days in the future to search a particular residence over and over again?” she asked at one point.
The deputy attorney general said they do not.
“So it’s not the same,” the justice said.
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