                          RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3651-15T4


IN THE MATTER OF THE APPLICATION        APPROVED FOR PUBLICATION
OF THE STATE OF NEW JERSEY FOR
COMMUNICATIONS DATA WARRANTS TO             February 2, 2017
OBTAIN THE CONTENTS OF STORED
                                           APPELLATE DIVISION
COMMUNICATIONS FROM TWITTER, INC.,
FROM USERS @ ______ AND @ ______,
ESS-147-CDW-16 AND ESS-148-CDW-16.
___________________________________________

           Argued December 13, 2016 – Decided February 2, 2017

           Before Judges Messano, Guadagno and Suter.

           On appeal from the Superior Court of New
           Jersey, Law Division, Essex County, Docket
           Nos. 147-CDW-16 and 148-CDW-16.

           Camila A. Garces, Special Deputy Attorney
           General/Acting   Assistant   Prosecutor   and
           Kayla   Elizabeth    Rowe,   Special   Deputy
           Attorney General/Acting Assistant Prosecutor,
           argued the cause for appellant (Carolyn A.
           Murray, Acting Essex County Prosecutor,
           attorney; Ms. Garces, of counsel and on the
           brief).

           Lawrence S. Lustberg, amicus curiae, argued
           the cause (Gibbons, P.C., attorneys; Mr.
           Lustberg and Avram D. Frey, on the brief).

      The opinion of the court was delivered by

MESSANO, P.J.A.D.

      This appeal presents an issue of first impression involving

the   Wiretapping   and   Electronic   Surveillance   Control   Act   (the
Act), N.J.S.A. 2A:156A-1 to -37.               The State of New Jersey sought

two communications data warrants (CDWs), N.J.S.A. 2A:156A-29(a),

to obtain from Twitter, Inc., an extensive list of information

and   data    associated    with    two    specific     Twitter   accounts   (the

accounts), as well as the contents of those accounts.1                   The Law

Division judge approved both warrants but edited both so as to

include      only   the   "visual    but       not   oral   component   of   video

messages," and the "visual but not aural/oral component" of any

"videos."


1
  "Twitter is self-described 'as an information network made up
of 140-character messages called Tweets.'" State v. Hannah, ___
N.J. Super. ___, ___ n.1 (App. Div. 2016) (quoting In re J.F.,
446 N.J. Super. 39, 44 n.7 (App. Div. 2016)).           "People post
Tweets, which may contain photos, videos, links and up to 140
characters of text. These messages are posted to [the person's]
profile, sent to [his or her] followers, and are searchable on
Twitter    search."        New     User    FAQs,    Twitter,    Inc.,
https://support.twitter.com/articles/13920# (last visited Jan.
3, 2017).    Tweets may be "public" or "protected," and when an
individual subscribes to Twitter, his or her tweets are public
by default.     "About public and protected Tweets," Twitter,
https://support.twitter.com/articles/14016#.      If a user changes
the default settings to maintain privacy, the public may not
simply access the Tweets unless the user consciously accepts the
request.            "FAQs       about       following,"      Twitter,
https://support.twitter.com/articles/14019#.       For our purposes,
we assume the account holders in this case changed their default
settings to maintain privacy over the contents of their Tweets,
and   therefore   they   are   not    accessible   without   judicial
intervention.        See     N.J.S.A.     2A:156A-4(c)    (permitting
interception of wire, electronic and oral communications when
one party has given prior consent), and (e) (permitting the
interception or access of electronic communications where they
are "readily accessible to the general public").




                                           2                             A-3651-15T4
      After we granted the State's motion for leave to appeal,

the   judge    filed   a   written      amplification   of   reasons     for   his

decision, Rule 2:5-1(b), which has significantly assisted our

consideration of the issues.              In large part, the judge relied

upon the "Administrative Procedures for Wiretap Applications,"

issued   in    October     2010    by   the   Administrative    Office    of   the

Courts    (AOC),       and        the   AOC's     Electronic     Surveillance,

Communications Data Warrant and Communications Information Order

Manual (the Order Manual).2             The judge quoted a portion of the

latter   "for     analogous        applications"    involving     searches      of

cellular phones with cameras:

              The type of application (Wiretap Order or
              CDW) to search a cellular phone depends upon
              the phone's capabilities.   Some phones have
              the capability only to take pictures and
              other [sic] can record rolling video with
              audio.

              a. Current Law

                   The current state of the law is that
              the audio portion of a video camera or video
              tape falls within the Wiretap Act as an oral
              communication.    State v. Diaz, 308 N.J.
              Super. 504, 512 (App. Div. 1998).   However,
              the Wiretap Act does not apply to silent
              video surveillance or the video portion of a
              videotape.    Kinsella v. Welch, 362 N.J.
              Super.   143,    158   (App.   Div.   2003).
              Therefore, a search for a video (without

2
  The Order Manual has since been updated, but the section cited
by the judge in the 2012 version has remained virtually
unchanged in the 2015 version.



                                          3                              A-3651-15T4
         audio) or a picture (without audio) in a
         cellular phone would require a CDW.     If
         there is an audio portion, a Wiretap Order
         is necessary.

         [Id. at 72 (emphasis added).]

Recognizing   these   secondary   sources   were   "not   precedent"   and

relying on Diaz, the judge concluded "the . . . Act applied to

the State's application to intercept the aural, oral, or audio

component of a video."

    Given the ex parte nature of the State's applications and

the need to maintain confidentiality as to the identity of the

account holders, we requested amicus curiae address the issues

presented for the benefit of the panel.       We thank amicus for its

participation in this appeal.

                                   I.

    Amicus stressed during oral argument, and we agree, the

issue is largely one of statutory interpretation.           As a result,

we start at the beginning, with the Act's definitions.

    A "wire communication" is

         any aural transfer made . . . through the
         use of facilities for the transmission of
         communications by the aid of wire, cable or
         other like connection between the point of
         origin and the point of reception, including
         the use of such connection in a switching
         station, furnished or operated by any person
         engaged in providing or operating such
         facilities    for   the    transmission    of
         intrastate,     interstate     or     foreign
         communication.



                                   4                             A-3651-15T4
             [N.J.S.A. 2A:156A-2(a) (emphasis added).]

The Legislature's 1993 amendments to the Act substituted the

term "aural transfer," now defined as "a transfer containing the

human voice at any point between and including the point of

origin and the point of reception[,]" N.J.S.A. 2A:156A-2(t), for

the   term    "communication."            L.     1993,    c.   29      §§   1-29      (the

Amendment).3        The    Amendment        also    provided      that      a    "[w]ire

communication       includes        any     electronic         storage          of   such

communication . . . ."             N.J.S.A. 2A:156A-2(a) (emphasis added).

The   Act    defines      an   "oral      communication"        as     "any      .   .    .

utter[ance]    by   a     person    exhibiting      an    expectation        that    such

communication is not subject to interception under circumstances

justifying such expectation . . . ."                N.J.S.A. 2A:156A-2(b).

      The    Amendment     also     added       several   terms      which      we   must

consider.      An   "[e]lectronic         communication,"         as    distinguished

from a "wire communication" or "oral communication," is defined

as

             any transfer of signs, signals, writing,
             images, sounds, data, or intelligence of any

3
  The 1993 amendments were identical to amendments Congress made
to the Act's federal counterpart, Title III of the federal
Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510-
2520 (Title III), by enacting the Electronic Communications
Privacy Act of 1986 (ECPA), Title II of which is known as the
Stored Communications Act. White v. White, 344 N.J. Super. 211,
218-19 (Ch. Div. 2001).



                                            5                                    A-3651-15T4
               nature transmitted in whole or in part by a
               wire, radio, electromagnetic, photoelectric
               or   photo-optical    system  that  affects
               interstate, intrastate or foreign commerce,
               but does not include:

               (1)   Any wire or oral communication . . . .

               [N.J.S.A. 2A:156A-2(m)(1) (emphasis added).]

See State v. Gaikwad, 349 N.J. Super. 62, 77 (App. Div. 2002)

(noting       that     in    conjunction,            the   definitions         of    wire       and

electronic      communications            make       "clear    .   .   .    the     Legislature

intended to cover the wide spectrum of potential communications

made possible through technological advances").                               The Amendment

made    both    wire        and    electronic         communications,         but     not      oral

communications, subject to "[e]lectronic storage," defined as

"[a]ny temporary, intermediate storage of a wire or electronic

communication          incidental          to        the      electronic          transmission

thereof[,]       and    [a]ny        storage         of    such    communication          by     an

electronic       communication             service         for     purpose          of    backup

protection of the communication                        . . . ."            N.J.S.A. 2A:156A-

2(q).

       Among other things, the Act makes it illegal for anyone to

"[p]urposely intercept[] . . . any wire, electronic or oral

communication . . . ."                N.J.S.A. 2A:156A-3(a) (emphasis added);

see    also    State        v.    Ates,   217    N.J.      253,    266      (explaining         the

statutory scheme), cert. denied sub nom., Ates v. New Jersey,




                                                 6                                       A-3651-15T4
___   U.S.   ___,    135   S.    Ct.   377,        190   L.   Ed.    2d     254   (2014).

"'Intercept'      means    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[,]"

meaning "any device or apparatus . . . that can be used to

intercept a wire, electronic or oral communication . . . ."

N.J.S.A. 2A:156A-2(c) and (d).

      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 (emphasis added).                     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]




                                          7                                       A-3651-15T4
                 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.

            [Ates,   supra,    217  N.J.   at   266-267
            (alterations in original) (quoting N.J.S.A.
            2A:156A-10(a)-(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."                   (Emphasis

added).     With limited exceptions, an electronic communication

service4 "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


4
  An "'[e]lectronic communication service' means any service
which provides to the users . . . the ability to send or receive
wire or electronic communications . . . ."     N.J.S.A. 2A:156A-
2(p).
5
  The Act requires a lesser standard for access to "a record, the
location information for a subscriber's or customer's mobile or
                                                      (continued)


                                        8                               A-3651-15T4
            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.

            [State v. Finesmith, 408             N.J. Super. 206,
            212 (App. Div. 2009).]

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 obtained without regard to the nature of

the crime being investigated.

      The   State   argues   that   since        the   judge   found   sufficient

probable cause for the issuance of a CDW, it was entitled to

obtain all requested data stored by Twitter on behalf of the

accounts, because that data, including the audio contents of any

video, consisted of "electronic communications."                 Concomitantly,

the   State   contends   the    data       was    held    in   post-transmittal

"electronic storage" and not subject to interception, as defined



(continued)
wireless communications device, or other information pertaining
to a subscriber or customer of the service," and not the
contents of an electronic communication.      N.J.S.A. 2A:156A-
29(c).    In those circumstances, the judge "shall issue" an
"order for disclosure" "if the law enforcement agency offers
specific and articulable facts showing that there are reasonable
grounds to believe that the record or other information . . . is
relevant and material to an ongoing criminal investigation."
N.J.S.A. 2A:156A-29(e) (emphasis added).



                                       9                                 A-3651-15T4
by the Act.        The State urges us to vacate the redactions and

limitations entered by the judge on the CDWs.

      Amicus suggests we affirm the CDWs as issued, albeit for

reasons other than those expressed by the judge.                 See, e.g., Do-

Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[I]t is

well-settled that appeals are taken from orders and judgments

and   not   from     opinions,      oral    decisions,     informal        written

decisions, or reasons given for the ultimate conclusion.").                       It

contends    that    the    audio    portions   of   the     data    were      "wire

communications"      in    "electronic      storage,"      and     the     State's

acquisition    of    the    audio     components    of     any     video      would

constitute an "interception" under the Act.               As a result, amicus

submits a wiretap order was required, and the State failed to

establish necessary grounds for its issuance.6

      We have considered the arguments raised in light of the

record and applicable legal standards.          We reverse.


6
  Amicus also asserts that we should vacate the CDWs in their
entirety   because    all   communications,    even    "electronic
communications"   in  "electronic   storage,"   deserve   enhanced
protection under the Act.    The well-recognized general rule is
that "amicus curiae must accept the case before the court as
presented by the parties and cannot raise issues not raised by
the parties."   State v. O'Driscoll, 215 N.J. 461, 479 (2013)
(quoting State v. Lazo, 209 N.J. 9, 25 (2012)).       Even though
this appeal involves an ex parte application by the State, we
conclude the general limitation placed upon amicus should apply
and decline to consider, for purposes of this appeal only, the
suggestion that the CDWs be vacated entirely.



                                       10                                  A-3651-15T4
                                             II.

                                                A.

      "In construing the meaning of a statute, our review is de

novo."      State v. Goodwin, 224 N.J. 102, 110 (2016) (quoting

Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)).

Our   "goal    .   .   .    is   to   give      effect   to     the   intent    of   the

Legislature."      State v. Morrison, ___ N.J. ___, ___ (2016) (slip

op. at 14) (quoting Maeker v. Ross, 219 N.J. 565, 575 (2014)).

We first look at the statute's language, giving the words their

plain meaning and enforcing the statute as written.                            State v.

Grate, 220 N.J. 317, 330 (2015) (citing State v. Drury, 190 N.J.

197, 209 (2007)).          However,

              [i]f the language is ambiguous or "admits to
              more than one reasonable interpretation, we
              may look to sources outside the language to
              ascertain the Legislature's intent." Such
              extrinsic sources, in general, may include
              the statute's purpose, to the extent that it
              is known, and the relevant legislative
              history.

              [Drury, supra, 190 N.J. at 209 (quoting
              State v. Reiner, 180 N.J. 307, 311 (2004)).]

Additionally, "[w]hen reviewing related statutory provisions we

generally     consider      them      in   pari      materia,    harmonizing      their

meaning with the Legislature's intent."                    In re G.C., 179 N.J.

475, 481-82 (2004) (citing State v. Green, 62 N.J. 547, 554-56

(1973)).




                                           11                                  A-3651-15T4
       Lastly, the Act was modeled after Title III of the federal

Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510-2520,

Ates, supra, 217 N.J. at 266, and "must be strictly construed to

safeguard     an   individual's       right    to    privacy."          Id.    at   268

(citations omitted).         Although the Act 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.'"                    Diaz, supra, 308

N.J. Super. at 510 (quoting State v. Fornino, 223 N.J. Super.

531,    544   (App.    Div.),    certif.      denied,      111   N.J.    570,    cert.

denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988)).

Interpretations        of    the     federal        act,     therefore,        provide

additional guidance in construing similar provisions of the Act.

Ibid.

                                        B.

       As an initial matter, the videos posted on the accounts

were not "oral communications" as defined by the Act.7                        In Diaz,

supra,    308      N.J.     Super.     at     506,      we    "consider[ed]         the


7
  The judge concluded the audio portions of any videos or video
messages were "oral communications" under the Act.       Amicus
agrees with the State that the judge's reasoning in this regard
was incorrect.



                                        12                                    A-3651-15T4
admissibility     of   a     videotape,     which     include[d]      a      sound

recording, made by parents in their own home of the conduct of

their   child's   daytime      'nanny.'"         After    reviewing       federal

precedent, we concluded that the "Act was not intended to apply

to a recorded silent video surveillance or the video portion of

a videotape which includes a sound component."                  Id. at 512.

However, we expressly did not consider the admissibility of the

"audio portion" of the recording that included the defendant's

phone conversations with others not seen on the videotape.                      Id.

at 512-13.    We also concluded that the defendant's statements to

the child captured on the video were admissible under the theory

of "vicarious consent."       Id. at 516.

    We agree with Diaz to the extent it implied audio portions

of surreptitiously-recorded videos may be "oral communications"

subject to the Act.        However, federal precedent makes clear that

"oral communications" are "narrowly defined as a nonelectronic

'oral   communication       uttered    by    a      person   exhibiting          an

expectation     that   such     communication        is   not   subject          to

interception under circumstances justifying such expectation.'"

In re High Fructose Corn Syrup Antitrust Litig., Delwood Farms,

Inc., 216 F.3d 621, 622-23 (7th Cir. 2000) (emphasis added)

(quoting 18 U.S.C.A. § 2510(2)); see also Huff v. Spaw, 794 F.3d

543, 548-54 (6th Cir. 2015) (holding communications were "oral"




                                      13                                  A-3651-15T4
where the plaintiff unknowingly "pocket-dialed" the defendant on

his cell phone, and the defendant heard and recorded face-to-

face    conversations         between      the       plaintiff    and    others);          United

States v. King, 335 F. Supp. 523, 548 (S.D. Cal. 1971), remanded

in part on other grounds, 478 F.2d 494 (9th Cir. 1973) (in-

person,       background        conversations            overheard     via    wiretap         were

"oral communications" and not within the scope of a wiretap

order authorizing interception of wire communications); Daniel

J. Solove, Reconstructing Electronic Surveillance Law, 72 Geo.

Wash.    L.    Rev.    1264,       1279    (2005)         (explaining    "if        the    police

attempted       to    place      a   bug       in       one's   home    to    record         one's

dinnertime conversations, this would be an interception of oral

communication").              This    narrow            interpretation        of     an      "oral

communication" finds support in the legislative history of the

Act's federal counterpart.                 See S. Rep. No. 99-541, 99th Cong.

2d Sess., at 13 (1986) ("In essence, an oral communication is

one carried by sound waves, not by an electronic medium.").

       We have no idea what the audio portions of any videos or

video    messages         posted     on    the       accounts     in    this        case     might

contain.         If,      for    example,           a    posted   video       included          the

contemporaneous           recording       of    a       conversation,        that    recording

might     well       be     considered          an        interception        of      an      oral

communication subject to the Act.                          See id. at 17 (indicating




                                                14                                        A-3651-15T4
Title III would apply to the "interception of the audio portion

of a [videotaped] meeting").                  However, we are firmly convinced

that    a    posted   video       held   by    Twitter   is     not   itself   an     oral

communication as defined by the Act, nor is its audio portion a

separate "oral communication" that must be segregated from the

video portion and only obtained by issuance of a wiretap order.

       In this regard, we liken the situation to those numerous

cases   that     have      held    satellite       television    transmissions        that

contain the aural transfer of sounds, including, presumably the

human       voice,    do    not     lose      their    character      as   "electronic

communications," whose contemporaneous illegal interception is

prohibited by the federal act.                     See DIRECTV Inc. v. Pepe, 431

F.3d    162,    166-67       (3d    Cir.      2005)    (citing     DIRECTV     Inc.     v.

Nicholas, 403 F.3d 223, 225-26 (4th Cir. 2005); United States v.

One Macom Video Cipher II, SN A6J050073, 985 F.2d 258, 261 (6th

Cir. 1993); United States v. Herring, 993 F.2d 784, 787 (11th

Cir. 1993); United States v. Lande, 968 F.2d 907, 909-10 (9th

Cir. 1992); United States v. Davis, 978 F.2d 415, 417-18 (8th

Cir. 1992); United States v. Splawn, 982 F.2d 414, 415-16 (10th

Cir. 1992)(en banc)).8


8
  The State correctly points to some of the practical problems
associated with the judge's reasoning and why compliance with
the wiretap provisions of the Act to secure the audio portions
of these videos is impossible. The Act requires any application
                                                    (continued)


                                              15                               A-3651-15T4
     Rather, we must decide whether videos and video messages

held in Twitter accounts are "electronic communications," which

may be accessed with a CDW when held in storage, or, as amicus

urges, "wire communications," the interception of which, even

when held in storage, requires a wiretap order.9   Amicus properly



(continued)
for a wiretap order to include a "showing that there is probable
cause to believe that such communication will be communicated on
the wire or electronic communication facilities involved
. . . ."     N.J.S.A. 2A:156A-9(c).   The audio portion of the
subject videos has already been communicated and recorded.
N.J.S.A. 2A:156A-10(d) requires that, with certain exceptions,
the wiretap order shall be issued only if there is probable
cause "the facilities from which, or the place where, the wire,
electronic or oral communications are to be intercepted, are or
have been used, or are about to be used, in connection with the
commission of [certain] offense[s], or are leased to, listed in
the name of, or commonly used by, such individual."       As the
State points out, it may never know who recorded a posted video,
or when or how it was recorded.         Every interception made
pursuant to a wiretap order is subject to minimization, N.J.S.A.
2A:156A-12(f), requiring the State to terminate "as soon as
practicable," any unnecessary interception. We have no idea how
the State could comply with such a requirement regarding the
audio portion of these videos. Finally, in many circumstances,
the Act requires the service of an inventory of intercepted
conversations upon the individuals whose conversations were
intercepted.   N.J.S.A. 2A:156A-16.   The State correctly notes
that it may never be able to identify those whose oral
communications are captured in the audio component of the
videos.
9
  In adding "electronic storage" to the definition of "wire
communications," Congress's "sole purpose . . . was to protect
voice mail . . . ." United States v. Councilman, 418 F.3d 67,
76 (1st Cir. 2005).    Notably in 2001, as part of the Patriot
Act, Congress amended the federal statute to remove "electronic
storage" from the definition of "wire communication."    See 18
U.S.C.A. § 2510(1).    In so doing, "Congress . . . reduce[d]
                                                    (continued)


                               16                         A-3651-15T4
points     to       the    blurring      of       any   distinction         between    the

definitions of the two types of communications, since a "wire

communication" means any "aural transfer made in whole or in

part   .   .    .    by     the   aid    of   a    wire   .    .   .   or    other    like

connection[,]"            N.J.S.A.      2A:156A-2(a),         while    an     electronic

communication includes "any transfer of . . . sounds . . . of

any nature transmitted in whole or in part by a wire . . .

system . . . ."            N.J.S.A. 2A:156A-2(m).             Indeed, in construing

the similar provisions of Title III and the ECPA enacted by

Congress in 1986, federal courts have observed "the intersection

of these two statutes 'is a complex, often convoluted, area of

the law.'"      Konop, supra, 302 F.3d at 874 (quoting United States

v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998)); see also, Steve

Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457,

462 (5th Cir. 1994) (noting the federal statute is "complex,"


(continued)
protection of voice mail messages to the lower level of
protection provided other electronically stored communications."
Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir.
2002) (citations omitted).     Our Legislature has not made a
similar change to the Act.
     However, the continued use of "electronic storage" in the
definition of a "wire communication" does not, as amicus
suggests, necessarily mean Tweets and associated videos are no
longer "electronic communications."   See Councilman, supra, 418
F.3d at 78 ("No document or legislator ever suggested that the
addition of the electronic storage clause to the definition of
'wire communication' would take messages in electronic storage
out of the definition of 'electronic communication.'").




                                              17                                 A-3651-15T4
and     "famous      (if   not    infamous)           for   its    lack    of     clarity")

(citations omitted).

      Whether        the   particular    communication             contains       the    human

voice     is    not    dispositive      of       whether      it     is    a    "wire"       or

"electronic communication," and, to the extent amicus urges that

the presence of audio on these Twitter videos means they are

wire communications, we reject the contention.                             As originally

drafted,       the     ECPA      intended        to     "substitute[]          the      phrase

'electronic communication' for 'wire communication' throughout

the Act, and subsum[e] wire communications within the newly-

defined term 'electronic communication.'"                           Councilman, supra,

418 F.3d at 76.            However, as enacted, the ECPA added the term

"electronic          communication"         to        the    existing          term      "wire

communication," and, as we already noted, the Amendment made

similar changes in the Act.             Nevertheless,

               Congress    intended   to   give                   the      term
               "electronic     communication"                     a       broad
               definition:

                      The        term          'electronic
                      communication'    is   intended    to
                      cover    a     broad     range     of
                      communication activities. . . . As
                      a rule, a communication is an
                      electronic communication if it is
                      neither carried by sound waves nor
                      can fairly be characterized as one
                      containing    the     human     voice
                      (carried   in    part    by    wire).
                      Communications consisting solely




                                            18                                        A-3651-15T4
                   of data, for example . . . would
                   be electronic communications.

            [Id. at 77 (quoting H.R. Rep. No. 99-647
            at 35 (1986)).]

Despite these seeming limitations on the term, the Senate report

included    "video      teleconferences"        as   an   example         of     electronic

communications.         S. Rep. No. 99-541, supra, at 14.                      In enacting

the Amendment, our Legislature clearly contemplated "electronic

communications" could include the human voice, stating the term

included "digital or voice transmissions to a beeper, a pager,

fax machines, electronic mail service and computers."                                Assembly

Judiciary, Law and Public Safety Comm., Statement to A. Nos. 130

and 1587 (Sept. 21, 1992) (emphasis added).

       Courts    have    expressed    frustration          with         the    failure       to

update the federal statute to keep pace with the advent of the

Internet and social media platforms like Twitter.                              See, e.g.,

Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659,

666 n.2 (D.N.J. 2013) ("Most courts, including this one, would

prefer that Congress update the statute to take into account the

invention of the Internet."); Konop, supra, 302 F.3d at 874

("[U]ntil       Congress    brings     the      laws      in       line       with     modern

technology,      protection   of     the    Internet      .    .    .     will    remain       a

confusing and uncertain area of the law.").                             However, courts

have   uniformly     concluded     that      communications             sent     to    social




                                           19                                         A-3651-15T4
media platforms or even private websites are clearly "electronic

communications" under the federal act.                           See Konop, supra, 302

F.3d     at   876        (the     plaintiff's        private           "website      fits       the

definition of 'electronic communication'"); Ehling, supra, 961

F.   Supp.    2d    at     667         ("Facebook         wall    posts       are    electronic

communications."); In re Application of the United States, 830

F. Supp. 2d 114, 127-28 (E.D. Va. 2011) (reviewing statutory

scheme as applied to an order for access to Twitter accounts);

In re § 2703(d) Order, 787 F. Supp. 2d 430, 436 (E.D. Va. 2011)

(same).

       We     conclude          the     Twitter       postings           are        "electronic

communications"          as     defined      by     the    Act.         Like     its      federal

counterpart,         the         Amendment's         definition           of        "electronic

communications"           intentionally           included         a     broad       range       of

communications           that,     unlike      wire        communications,           were       not

narrowly      defined      so     as    to   require        an    "aural       transfer"         of

information.         N.J.S.A. 2A:156A-2(a).                  Twitter users routinely

convey      their   messages          without       any    aural       component       at     all,

instead, using the "transfer of signs, signals, writing . . .

[and]    data"      in    their       posts.        N.J.S.A.       2A:156A-2(m).                The

purposely-intended               broader          definition             of         "electronic

communications,"          see     Councilman,         supra,       418    F.3d       at    76-77,

sweeps in other forms of transfer, like "images [and] sounds,"




                                               20                                         A-3651-15T4
N.J.S.A. 2A:156A-2(m), but the mere presence of the human voice

does not change the inherent nature of a Tweet.

       As    a    corollary,     the   State        argues     accessing      Tweets    in

storage on Twitter's servers is not an "interception" under the

Act.        Amicus      acknowledges       the    videos     are     in   "storage,"   but

contends         that   the    interception        of   a     wire    communication     in

storage still requires a wiretap order, not a CDW.                           Although we

conclude the audio components of the videos stored by Twitter

are part and parcel of electronic communications, not wire or

oral communications, we must still address the issue, because

the     Act         prohibits        the         interception         of     "electronic

communications" without a wiretap order.                      N.J.S.A. 2A:156A-3.

       We    agree      with   the   State        and   the    overwhelming      federal

precedent that holds interception, as defined by the Act and the

federal act, contemplates the acquisition of the communication

contemporaneously with its transmission.                      Luis v. Zang, 833 F.3d

619, 629 (6th Cir. 2016); accord Fraser v. Nationwide Mut. Ins.

Co., 352 F.3d 107, 113-14 (3d Cir. 2003), as amended (Jan. 20,

2004); United States v. Steiger, 318 F.3d 1039, 1048-49 (11th

Cir. 2003); Konop, supra, 302 F.3d at 878; Ehling, supra, 872 F.

Supp. 2d at 371-72; Finesmith, supra, 408 N.J. Super. at 212.

But see Councilman, supra, 418 F.3d at 80 (expressing doubt as

to the contemporaneity requirement).                        In this case, the State




                                             21                                  A-3651-15T4
does   not    seek     to       access     the    electronic        communications         in

transmission.        Rather, the State seeks to access the electronic

communications        already      in    "electronic        storage"        on    Twitter's

servers.     See Steve Jackson Games, Inc., supra, 36 F.3d at 462

("Congress     did      not       intend     for     'intercept'        to       apply     to

'electronic     communications'            when    those     communications         are    in

'electronic storage.'").

       We conclude the audio portions of the videos and video

messages     held     in    the     accounts       by     Twitter     are    "electronic

communications"        under       the     Act,     in    electronic        storage       and

accessible    to     the    State    through       the    CDWs   issued      by    the    Law

Division     judge.        We    therefore       remand    the   matter      to    the    Law

Division for entry of CDWs that do not contain the edits and

deletions     limiting      the     State's        access.       We    do    not     retain

jurisdiction.




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